This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project
to make the world's books discoverable online.
It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject
to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books
are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover.
Marks, notations and other marginalia present in the original volume will appear in this file - a reminder of this book's long journey from the
publisher to a library and finally to you.
Usage guidelines
Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing this resource, we have taken steps to
prevent abuse by commercial parties, including placing technical restrictions on automated querying.
We also ask that you:
+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for
personal, non-commercial purposes.
+ Refrain from automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the
use of public domain materials for these purposes and may be able to help.
+ Maintain attribution The Google "watermark" you see on each file is essential for informing people about this project and helping them find
additional materials through Google Book Search. Please do not remove it.
+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner
anywhere in the world. Copyright infringement liability can be quite severe.
About Google Book Search
Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web
atjhttp : //books . qooqle . com/
I
HARVARD LAW SCHOOL
LIBRARY
IT-
REPORTS OF CASES
DECIDED IN THB
COUET OF APPEALS
STATE OF NEW YORK
From and Including Decisions of October 6, to Decisions
of December 8, 1903,
wrrn
NOTES, REFERENCES AND INDEX.
By EDWIN A. BEDELL,
Statm Reporter.
Volume 176.
ALBANY
J. B. LYON COMPANY.
1904.
Entered, according to Act of Congress, in the year nineteen hundred and four.
By JOHN F. O'BRIEN, Secretary of the State of New York,
In trust for the benefit of the People of the said State, in the office of the Librarian of
Congress, at Washington, D. C.
£oi*_. S^l^^o^ *,/, /74*y,
</*""
1
1
JUDGES OF THE COURT OF APPEALS.
ALTON B. PARKER, Chief Jcdoe.
JOHN C. GRAY,
DENIS O'BRIEN,
EDWARD T. BARTLETT,
ALBERT HAIGHT,
CELORA E. MARTIN,
IRVING G. VANN,
Associate Judges.
EDGAR M. CULLEN,
WILLIAM E. WERNER,
Justices of the Supreme Court serving as
Associate Judges.*
} * Designated by the Governor January 1. 1900, under section 7 of article
VI of the Constitution, as amended in 1899.
iii
ERRATA.
In Barber v. Brundage (169 N. Y. at p. 370) in 6th line
from top of page after the word " Brundage" strike out the
words " a granddaughter of the intestate " and insert u the
widow of the intestate's brother Franklin. "
In 14th line from top of page strike out the words " also a
granddaughter of intestate," and insert " a niece of intestate."
In People v. Glennon (175 N. Y. p. 55,) in 5th line from
top of page (Penal Code, sec. 332) should read section 322.
In Ackerman v. True (175 N. Y. p. 357) in 5th line of Judge
Martin's opinion, insert the word " northerly " in place of
" southerly."
4
i
TABLE OF CASES
REPORTED IN THIS VOLUME.
A" PAGB.
Ackerman v. True 560
Adam, Lehigh Valley Railway
Co. v 420
Adams v. Elwood 106
Adams, People v 851
American Telephone & Tel. Co.,
Wilcox v 115
Andrews, Cole v 874
Arkenburgh v. Little 551
Arnold, People ex rel., v. Feit-
ner " 562
B.
Baer v. McCullough 97
Baird, City of New York v. . . . 269
Barrett Chemical Co. v. Stern. 27
Becker v. City of New York.. . 441
Becker v. Krank 545
Beebe, People ex rel., v. War-
den, etc 577
Betz, Dickescheid v 611
Birrell v. N. Y. & Harlem R. R.
Co 558
Blair, People ex rel., v. Folks.. 565
Board of Education of City of
New York, Gunnison v 11
Board of Education of Cortlandt
v. Bd. of Education of Cort-
landt 555
Board of R. R. Comrs., People
ex rel. N. Y. City & West-
chester Ry. Co. v 577
Board of Water Comrs. of
White Plains, In re ... 239
Boeckel, In re Clinton v 564
Boyce, Potter v 551
Boyd v. N. Y. Security & Trust
Co 556, 613
FAOB.
Brandegee v. Metropolitan Life
Ins. Co 589
Brink v. Stratton 150
Brookfleld, In re (Sarles) 188
Brooklyn Heights R. R. Co.,
Lane v 557
Brooklyn Teachers' Association,
In re 564
Brooklyn Union Elevated R. R.
Co., In re (Case) 218
Brott v. Davidson 605
Brown v. City of New York. . . 571
Brown, In re, v. Supreme Court.
Independent Order of Forest-
ers 182
Buckhout v. City of Now York. 868
Buffalo, City of, v. Delaware,
L. &W. R. R. Co 808
Buffalo, City of, v. Delaware,
L. & W. Ry. Co 594
Buffalo, City of, Marshall v. . . 545
Buffalo Elevating Co., Howard
Iron Works v 1
C.
Calder, People ex rel. Chirurg
v 568
Carter, Zapf v 576
Celluloid Co., Welle v 560
CentralN. Y. Telephone & Tel.
Co., Walsh v 163
Central Trust Co. of New York
v. N. Y. & Westchester Water
Co 546
Chesebrough, Smith v 317
Chester, Tripp v 575
Chirurg, People ex rel., v.
Calder 568
v
VI
TABLE OF CASES REPORTED.
PAGE.
City of Buffalo v. Delaware,
L. & W. R. It. Co 308
City of Buffalo v. Delaware, L.
& W. Ry. Co 594
City of Buffalo, Marshall v 545
City of Little Falls, Loomia v. . 31
City of New York v. Baird 269
City of New York, Becker v. . . 441
City of New York, Brown v. . . 571
City of New York, Buckhout
v 363
City of New York, Deshong v. 475
City of New York, Eckerson v. 609
City of New York, Hall v 293
City of New York, Knowles v.. 430
City of New York, Lyons v. . . . 609
City of New York, MacKnight
Plintic Stone Co. v 586
City of New York, McCabe v... 587
City of New York, v. McCaldin
Bros. Co 585
City of New York, Martin v. . . 371
City of New York, O'Keeflfe v.. 297
City of New York, Sundheimer,
v 495
City of New York, Weidman v. 586
City of New York, Board of
Education of, Gunnison v 11
City of New York, Dept . of
Health of, People ex rel.
Steers v 602
City of New York, Mayor, etc.,
of, Episcopo v 572, 595
City of New York, Mayor, etc.,
of, Hughes v 585
City of New York, Mayor, etc.,
of, Mack v 573
City of Rochester, Rochester &
L. O. Water Co. v 36, 596
Clark, People ex rel., v. Keeper
of N. Y. State Reformatory,
etc 465
Clifton, People ex rel., v. De
Bragga 557
Clinton, In re, v. Boeckel 564
Cohnfeld v. Tanenbaum 126
Cole v. Andrews 374
PAGE.
Connors v. Noone 592
Conolly v. Hyams 403
Consolidated Tel. & El. Sub-
way Co., People ex rel., v.
Monroe 567
Continental Trust Co., South-
gate v 588
Corning, Strucks,v 548
Cortlandt, Board of Education
of, v. Board of Education of
Cortlandt 555
Cruikshank, In re 566
D.
Davidson, Brott v 605
De Bragga, People ex rel. Clif-
ton v 557
De Garmo v. Phelps 455
Delano, In re (Estate) 486
Delaware, L. & W. R. R. Co.,
City of Buffalo v 308
Delaware, L. & W. Ry. Co.,
City of Buffalo v. 594
Dept. of Health, City of New
York, People ex rel. Steers
v 602
Deshong v. City of New Yoik. 475
Dickescheid v. Betz 611
Dietzgen Co., Young v .. 590
Dinsmore, People ex rel., v.
Vandewater 500, 558
Dr. Dadirrian & Sons Co. v.
Hauenstein 560
Dykman v. U. S. Life Ins. Co.. 299
E.
Eckerson v. City of New York . 609
Education, Board of, Cortlandt,
v. Board of Education of
Cortlandt 555
Elias, In re (Estate) 547
Elwood, Adams v 106
Ennis, People v 289
Eno, People ex rel. Lester v... . 513
Episcopo v. Mayor, etc., of New
York 572, 595
Erie R. R. Co., Glennon v 552
TABLE OF CASES REPORTED.
Vll
F
X • PAGE.
Tanners' Loan & Trust Co.,
Segerv 589
Farmers' Loan & Trust Co.,
Vernier v 549
Farquhar Co., Limited, v.
Truesdell 547, 596
Feitner, People ex rel. Arnold
v 562
Ferris, In re 607
Filkin, People v 548
Folks, People ex rel. Blair v. . . 565
Foresters, Independent Order,
Supreme Court of, In re
Brown v 132
Forty-second St. & G St. F. R.
R. Co., Knickerbocker Ice
Co. v 408
Fox, Manhattan Fire Ins. Co. v. 553
G.
Gaimari, People v 84
Garver, In re 386
Gawne, In re 597
German Savings Bank, Mans v. 377
Gibbes, In re (Estate) 565
Gibbons, Holly v 520
Gill, People ex rel. Harris v. . . 606
Glennon v. Erie R. R. Co 552
Goldberg v. Jacocks 569
Green, Stannard v 575
Gress, People ex rel., v. Hilliard. 604
Grube v. Hamburg- American
Steamship Co 383
Gunnison v. Board of Educa-
tion, City of New York 11
H.
Hall v. City of New York 293
Hall,Watertown Carriage Co. v. 313
Hamburg- American Steamship
Co., Grube v 383
Harris, People ex rel., v. Gill. . 606
Hatch, In re 592
Hauenstein, Dr. Dadirrian &
8onsCo. v 560
Hearst, Werner v 556
PAQH.
Hicks v. Monarch Cycle Mfg.
Co Ill
Hilliard, People ex rel. Gress v.. 604
Hilton, Russell v 560
Holmes, In re 603, 604
Holly v. Gibbons 520
Hopkins, In re (Will) 595
Howard Iron Works v. Buffalo
Elevating Co 1
Howe, In re (Estate) 570
Hughes v. Mayor, etc. , of New
York 585
Huwer, Levy v 612
Hyaras, Conolly v 403
Hyatt, Walsh v 550
I.
j In re Board of Water Comrs.
of White Plains 239
In re Brookfield (Sarles) 138
In re Brooklyn Teachers'
Association 564
In re Brooklyn Union Elevated
R. R. Co. (Case) 213
In re Brown v. Supreme Court,
Independent Order of Forest-
ers 132
In re Clinton v. Boeckel 564
In re Cruikshank 566
In re Delano (Estate) 486
In re Elias (Estate) 547
In re Ferris 607
In re Garver 386
In re Gawne 597
In re Gibbes (Estate) 565
In re Hatch 592
In re Holmes 603, 604
In re Hopkins (Will) 595
In re Howe (Estate) 570
InreMcrritt 608
In re N. Y. C. & H. R. R. R.
Co.... 561
InrePieris 566
In re Putnam (Will). 612
In re Rice (Will) 570
In re Rose 587
In re Schlivinski v. Maxwell. . . 568
V1U
TABLE OF CASES REPORTED.
PAQB.
In re Stewart v. Ward 559
In re Torge v. Village of Sala-
manca 824
In re United States Trust Co.
(Rogers) 563
In re Weidenfeld v. Keppler. . . 562
In re Wray Drug Co. (No. 1). . 554
In re Wray Drug Co. (No. 2). . 555
In re Wray Drug Co 602
J.
Jacocks, Goldberg v 569
Joseph v. Raff 611
K
Keeper of N. Y. State Reforma-
tory, etc., People ex reL
Clark v 465
Keirns v N. Y. & Harlem R. R.
Co 559
Keppler, In re Weidenfeld v. . . 562
King, Ross v 550
Kirkover, South Buffalo Rail-
way Co. v 801
Knickerbocker Ice Co. v. Forty-
second St. & G. St. F. R. R.
Co 408
Knowles v. City of New York. 430
Kolb v. National Surety Co. . . . 283
Krank, Becker v 545
L.
Lafferty v. Third Avenue R. R.
Co 594
Lane v. Brooklyn Heights R. R.
Co 557
Langan v. Supreme Council
Am. L.of H 595
Leazenbee, People ex rel.f v.
Partridge 608
Leggat v. Leggat 590
Lehigh Valley Ry. Co. v. Adam. 420
Lester, People ex rel., v. Eno. . 513
Levenson, Sandles v 610
Levy v. Huwer 612
Lewisohn, People ex rel., v.
O'Brien 253
FAOB.
Lewisohn, People ex rel., v.
Wyatt 258
Libby v. Van Derzee 591
Little, Arkenburgh v 551
Little Falls, City of, Loomis
v 81
Long v. Richmond 560-
Loomis v. City of Little Falls. . 31
Lyons v. City of New York. . . 609
M.
McBain, People ex rel., v. Wis-
wall 571
McCabe v. City of New York. . 687
McCaldin Bros. Co., City of
New York v 585
McCullough, Baer v 97
McCullough, People ex rel., v.
Wilson 574
McDonough, People ex rel.
Williams v 606
McEchron, Wallace v 424
McGee, People ex rel., v. Part-
ridge 605
McNamara v. Willcox 573
MacKnight Flintic Stone Co. v.
City of New York 586
Maas v. German Savings Bank. 377
Mack v. Mayor, etc., of New
York 578
Maibrunn, Skillin v 588
Manhattan Fire Ins. Co. v.
Fox 558
Marshall v. City of Buffalo 545
Martin v. City of New York. . . 871
Matter of Board of Water Comrs.
of White Plains 289
Matter of Brookfleld (Sarles).. . . 188
Matter of Brooklyn Teachers'
Association 564
Matter of Brooklyn Union Ele-
vated R. R. Co. (Case) 213
Matter of Brown v. Supreme
Court, Independent Order of
Foresters 133
Matter of Clinton v. Boeckcl. . . 564
Matter of Cruikshank 566
TABLE OF CASES REPORTED.
iX
PAGE.
Matter of Delano (Estate) 486
Matter of Ellas (Estate) 547
Matter of Ferris 607
Matter of Garver 886
Matter of Gawne 597
Matter of Gibbes (Estate) 565
Matter of Hatch 592
Matter of Holmes 608, 604
Matter of Hopkins (Will) 695
Matter of Howe (Estate) 570
Matter of Merritt 608
Matter of N. Y. C. & H. R. R.
R. Co 561
Matter of Pieris 566
Matter of Putnam (Will) 612
Matter of Rice (Will) 570
Matter of Rose 587
Matter of Schlivinski v. Max-
well 568
Matter of Stewart v. Ward 559
Matter of Torge v. Village of
Salamanca 824
Matter of United States Trust
Co. (Rogers) 568
Matter of Weidenfeld v. Kep-
pler , 562
Matter of Wray Drug Co.
(No. 1) 554
Matter of Wray Drug Co.
(No. 2) 555
Matter of Wray Drug Co 602
Maxwell, In re Schlivinski v. . . 568
Mayor, etc., of New York,
Episcopov 572, 595
Mayor, etc., of New York,
Hughes v 585
Mayor, etc., of New York,
Mack v 573
Merritt, In re . . 608
Metropolitan Life Ins. Co.,
Brandegee v. 589
Metropolitan Street Ry. Co.,
Wagner v 610
Monarch Cycle Mfg. Co., Hicks
v Ill
Monroe, People ex rel. Consoli-
dated Tel. & El. Subway Co.
▼ 567
paos.
Monroe, People ex rel. Standard
Water Meter Co. v 550
Montgomery, People v 21J>
N.
National Surety Co., Kolb v. . . 28a
N. Y. C. «& H. R. R. R. Co.,
In re 561
N. Y. C. & H. R. R. R. Co.,
Nilesv 119
New York, City of, v. Baird. . 26ft
New York, City of, Becker v. . 441
New York, City of, Brown v. . 571
New York, City of, Buckhout
v 868
New York, City of, Deshong
v. 475
New York, City of. Eckerson v. 609
New York, City of, Hall v 293
New York, City of, Knowles v. 480
New York, City of, Lyons v. . . 60ft
New York, City of, McCabe v. 587
New York, City, of v. McCaldin
Bros. Co 585
New York, City of, MacKnight
Flintic Stone Co. v 586.
New York, City of, Martin v. . 871
New York, City of, O'Keeffe v. 297
New York, City of, Sund-
heimer v 49£
New York, City of, Weidman
▼ 58d
New York, City of. Board
of Education, Gunnison v 11
New York, City of, Dept. of
Health of, People ex rel.
Steers v 60&
New York, City of, Mayor, etc.,
of, Episcopo v 572. 59£
New York, City of, Mayor, etc.,
of, Hughes v 585
New York, City of, Mayor, etc. ,
of, Mack v 578
N. Y. City & Westchester Ry.
Co., People ex rel., v. Board
of R. R Comrs 577
N. Y. & Harlem R. R. Co.,
Birrell v 55a
TABLE OF CASES EEPORTED.
PAGE.
N. Y. & Harlem R. R. Co.,
Keirns v 559
N. Y. Security & Trust Co.,
Boyd v 556, 613
N. Y. & Westchester Water Co.,
Central Trust Co. of N. Y.
v 546
Niles v. N. Y. C. & H. R. R.
R. Co 119
Noone, Connors v 592
o.
O'Brien v. Supreme Council C.
B. L 597
O'Brien, People ex rel. Lew-
isohn v 253
O'Keeffe v. City of New York. . 297
Order of Foresters, Independ-
ent, Supreme Court of, In re
Brown v 132
P.
Partridge, People ex rel. Lea-
zenbee v 608
Partridge, People ex rel. Mc-
Gee v 605
People v. Adams 351
People v. Ennis 289
People v. Filkin 548
People v. Gaimari 84
People v. Montgomery 219
People v. Pierson 201
People v. Thames & Mersey M.
Ins. Co 531
People v. Tobin 278
People v. Wadhams 9
People v. White 331
People ex rel. Arnold v. Feitner. 562
People ex rel. Beebe v. Warden,
etc 577
People ex rel. Blair v. Folks. . . 565
People ex rel. Chirurg v.Calder, 568
People ex rel. Clark v. Keeper
of N. Y. State Reformatory,
etc \. 465
People ex rel. Clifton v. De
Bragga 557
| PAGE.
People ex rel. Consolidated Tel.
& El. Subway Co. v. Monroe. 567
People ex rel. Dinsmore v. Van-
dewater 500, 558
People ex rel. Gress v. Hilliard. 604
People ex rel. Harris v. Gill.. . . 606
People ex rel. Leazenbee v.
Partridge 608
People ex rel. Lester v. Eno. . . 513
People ex rel. Lewisohu v.
O'Brien: 253
People ex rel. Lewisohn v.
Wyatt 253
People ex rel. McBaiii v. Wis-
wall 571
People ex rel. McCullough v.
Wilson 574
People ex rel. McGee v. Part-
ridge 605
People ex rel. N. Y. City &
Westchester Ry. Co. v. Board
of R. R. Comrs 577
People ex rel. Ryan v. Wells. . 462
People ex rel. Smith v. Weeks. 194
People ex rel. Standard Water
Meter Co. v. Monroe 552
People ex rel. Steers v. Dept. of
Health, City of New York. . . 602
People ex rel. Van Linda v.
Warden, etc 577
People ex rel. Williams v. Mc-
Donough 606
People ex rel. Young v. Sturgis. 563
Phelps, De Garmo v 455
Pieris, In re 566
Pierson, People v 201
Pots v. Sicher 574
Potter v. Boyce 551
Prudential Ins. Co. of America,
Russell v 178
Putnam, In re (Will) 612
K.
Raff, Joseph v 611
R. R. Comrs., Board of, People
[ ex rel. N. Y. City & West-
i Chester Ry. Co. v 577
! Rice, In re (Will) 570
TABLE OF CASES EEPORTED.
XI
PAGE.
Richmond, Long v 560
Rochester, City of, Rochester <&
L. O. Water Co. v 36, 596
Rochester & L. O. Water Co. v.
City of Rochester 36, 596
Rose, In re 587
Ross v. King 550
Rundell v. Swartwout 591
Russell v. Hilton 560
Russell v. Prudential Ins. Co.
of America 178
Ryan, People ex rel. , v. Wells . 462
s.
Salamanca, Village of, In re
Torge v 324
Sandlcs v. Leyenson 610
Schauffler, Twelfth Ward Bank
v 593, 613
Schlivinski, In re, v. Maxwell. 568
8eger v. Farmers' Loan & Trust
Co 589
Shelderberg v. Village of Tona-
wanda 549
Sicher, Pots v 574
Simis v. White 561
Skillin v. Maibrunn 588
Smith v. Chesebrough 317
Smith, People exrcl., v. Weeks. 194
South Buffalo Railway Co. v.
Kirkover 301
Southgate v. Continental Trust
Co 588
Standard Water Meter Co.,
People ex rel., v. Monroe. . . . 552
Standtke v. Swits Conde Co. . . 546
Stannard v. Green 575
Steers, People ex rel. v. Dept. of
Health, City of New York. . 602
Stern, Barrett Chemical Co.
v.. 27
Stevens v. Union Railway Co. . 607
Stewart, In re, v. Ward 559
Stratum, Brink v 150
Strucks v. Corning 548
Sturgis, People ex rel. Young
v 563
PAGE.
' Sundheimer v. City of New
i York 495
I Supreme Council, Am. L. of H.,
Langan v 595
Supreme Council, C. B. L.,
O'Brien v 597
Supreme Court, Independent
Order of Foresters, In re
Brown v. . , 133
Swartwout, Rundell v 591
Swits Conde Co., Standtke v. . . 546
Tanenbaum, Cohnfeld v '. 126
Taylor v. Thompson 168
Thames & Mersey M. Ins. Co.,
People v 531
Thames & Mersey M. Ins. Co.,
Voisin v .... , 576
Third Ave. R. R. Co., Lafferty
v 594
Thompson, Taylor v 168
Title Guarantee & Trust Co.,
Trenton Potteries Co. v 65
Tobin, People v 278
Tomkins, Walter v 553
Tonawanda, Village of, Sheld-
erberg v 549
Torge, In re, v. Village of Sala-
manca 324
Trenton Potteries Co. v. Title
Guarantee & Trust Co 65
Tripp v. Chester 575
True, Ackerman v 560
Truesdell, Farquhar Co., Lim-
ited, v 547, 596
Trunkey v. Van Sant 535
Twelfth Ward Bank v. Schauf-
fler 593, 613
U.
Union Railway Co., Stevens v.. 607
United States Life Ins. Co.,
Dykmanv 299
United States Trust Co., In re
(Rogers) 563
Xll
TABLE OF CASES REPORTED.
V
* • PAGE.
Van Derzee, Libby v 591
Vandewater, Peopb ex rel.
Dinsmorc v 500, 558
Van Linda, People ex rel., v.
Warden, etc 577
Van Sant, Trunkey v 535
Venner v. Farmers' Loan &
Trust Co 549
Village of Salamanca, In re
Torge v 324
Village of Tonawanda, Shelder-
berg v 549
Voisin v. Thames & Mersey M.
Ins. Co 576
W.
Wadhams, People v 9
Wagner v. Metropolitan Street
Ry. Co 610
Wallace v. McEchron ... 424
Walsh v. Central N. Y. Tele-
phone & Tel. Co. 163
Walsh v. Hyatt. . .\ 550
Walter v. Tomkins 553
Wanamaker v. Weaver 75
Ward, In re Stewart v 559
Warden, etc., People ex rel.
Beebc v 577
Warden, etc., People ex rel.
Van Linda v 577
Watertown Carriage Co. v.
Hall 813
PAGE.
Weaver, Wanamaker v 75
Weeks, People ex rel. Smith v. 194
Weidenfeld, In re, v. Keppler. . 562
Weidman v. City of New York. 586
Welle v. Celluloid Co 560
Wells, People ex rel. Ryan v. . . 462
Werner v. Hearst 556
White, People v 331
White, Simis v 561
White Plains, Board of Water
Comrs. of, In re 289
Wilcox v. American Telephone
&Tel. Co 115
Willcox, McNamarav 573
Williams, People ex rel., v. Mc-
Donough 606
Wilson, People ex rel. McCul-
lough v 574
Wiswall, People ex rel. McBain
v 571
Wray Drug Co., In re (No. 1). . 554
Wray Drug Co., In re (No. 2). . 555
Wray Drug Co., In re 602
Wyatt, People ex rel. Lewisohn
v 253
Y.
Young v. Dietzgen Co 590
Young, People ex rel., v. Stur-
gis 563
z.
Zapf v. Carter 576
TABLE OF CASES
CITED IN THE OPINIONS REPORTED IN THIS VOLUME.
A. PADS.
JEtna Ins. Co. v. Mayor, etc., of £ 153 N Y 881 479
N.Y )
Albany City Sav. Instn. v. Burdick. 87 N. Y. 40 117, 118
Albany Northern R. R. Co. v. ) 24 N. Y. 843, 849 -- 58
Brownell >
Albany Northern R. R. Co. v.) 16 Barb 69 804
Lansing )
Albany & Susquehana R. Co. v. ) 1Q Abb ^ R (N g } m m
Dayton 1
Allen v. Stevens 161 N. Y. 122 821
Altman v. Hofeller 152 N. Y. 498 811,312, 313
Appeal of Gray, Jr 116 Penn. St. 256, 262 880
B.
Babbagev. Powers 180 N. Y. 281 482
Bagley v. Bowe 105 N. Y. 171, 179 497
Baker v.N, Y.Nat. Exchange Bank. 100 N. Y. 81 181
Balbo v. People 80 N, Y. 484, 499 849
Bank of Chenango v. Brown 26 N. Y. 467 361
Bank of Monongahela Valley v. ) 159 N Y. 201, 208 497
Weston )
Barker v. People 3 Cow. 686, 704 211
Barron v. Baltimore 7 Peters, 248 261
Bathgate v. Haskin 59 N. Y. 533 8
Beekmanv. Bigham 5 N. Y. 366 105
Beekman v. Bonsor 28 N. Y. 299 540, 544
Black River & M. R. R. Co. v,
f 9 uuu, x\rt
s
I 9Hun,104 804
Barnard )
Bloomingdalev.Brinckerhoff \ 2 Misc' ReP' 4* 49 N' Y'
6 I R. 142 79
Board of Comrs. Excise v. Merchant. 108 N. Y. 148 * 861
Boehen v. Williamsburgh City I 35 jj Y 181 191
Ins. Co )
Bohm v. Metr. El. Ry. Co 129 N. Y. 576 805, 381
Bonesteel v. Mayor, etc., of N. Y. 22 N. Y. 162 445, 451
Born v. Schrenkeisen 110 N. Y. 55 , 74
Bosanquet v. Wray 6 Taunt. 597 177
Boyd v. United States 116 U. S. 616 858
xiii
xiv TABLE OF CASES CITED.
PACK.
Bradshaw v. Callaghan 8 Johns. 558, 566 312
Brady v. Mayor, etc. , of N. Y . . . . 132 N. Y. 415, 427 452, 453
Briggs v. Boyd 56 N. Y. 289 479
Brotherton v. People 75 N. Y. 159, 162 286
Brown v. Torrey 10 J. & S. 1. 4 485
Brown v. Walker 161 U. S. 591, 606. . 260, 265, 266, 267
Buck v. Barker 5N.Y.8.R. 826 485
Burr's Trial 1 Burr's Trial, 244 264
Bush v. Commonwealth 80 Ky. 244 158
Butler v. Johnson Ill N. Y. 204 527
Butts v. Swartwood 2 Cowen, 431 157
c.
Campbell v. Commonwealth 84 Penn. St. 187 349
Canandaigua & N. F. R. R. Co. v. j 16 3^ 273 804
Payne >
Cheesebrough v. Millard 1 Johns. Ch. 412 237
Child v. Starr 4 Hill, 869 145
City of Johnstown v. Frederick. ... 85 App. Div. 44 218
City of Petersburg v. Applegarth. . 28 Gratt. 321; 28 Am. Rep. 357. . 252
City of Rochester v. Town of Rush. 80 N. Y. 302 59, 62
City of Terre Haute v. Lake 43 Ind. 480 446
Clark v. Cox 32 Mich. 204 82
Clark v. Munroe 14 Mass. 851 459 '
Clarke v. Leupp 88 N. Y. 228 600
Clay v. Wood 153 N. Y. 134 548, 601
Cleary v. Municipal El. L. Co. ... J 19 f Y« SuPP- «* 139 N" Y' o
< 643 118
Cohn v. Goldman 76 N. Y. 284 437
Coleman v. Manhattan Beach ) 94 x Y 229 45'* 461
Impr. Co *
Collister v. Fassitt 163 N. Y. 281 599
Colt v. Sixth Ave. R. R. Co 49 N. Y. 671 497
Columbia Mill Co. v. Alcorn 150 U. S. 460 80
Commonwealth v. Dana 2 Mete. 329, 337 357
Commonwealth v. Intoxicating J 4 AHen 593 6Q0 ^
Liquors )
Commonwealth v. Keenan 148 Mass. 470 357
Commonwealth v. Knapp 9 Pick. 496 349
Commonwealth v. Lottery Tickets. 5 Cu*h. 369, 374 357
Commonwealth v. Ryan 157 Mass. 403 357
Commonwealth v. Taylor 132 Mass. 261 357
Commonwealth v. Tibbetts 157 Mass. 519 357
Commonwealth v. Tuckerraan 10 Gray, 173 349
Commonwealth v. Welsh 110 Mass. 359 357
Conner v. Reeves 103 N. Y. 527 274
Conrad v. Trustees, Vil. of Ithaca. . 16 N. Y. 158 50
TABLE OF CASES CITED. xr
PAOK
Converse v. Searls 10 Vt. 578 457
Cooke & Cobb Co. v. Miller 169 N. Y. 475 8<*
Coulter v. Bd. of Education of | «« N y qak ia
N. Y )
Counselman v. Hitchcock j U2 U. S. 547 261. 263, 265, 266
1 267, 26S
Cowley v. People 83 N. Y. 464 207
Cox v. People .... 80 N. Y. 500,515 34ft
Crary v. Goodman 22 N. Y. 170 460
Crawford v. Burke 201 111. 581 817
Cromwell v. Benjamin 41 Barb. 558 78
Cromwell v. MacLean 123 N. Y. 474 42ft
Curtis v. Root 20 111. 53 45ft
Curtis v. Van Bergh 161 N. Y. 47 114
D.
Dannatv. Mayor, etc., of N. Y . . . 66 N. Y. 585, 588 15
Debenham v. Mellon L. R. (6 App. Cas.) 24 80
Debenham v. Mellon L. R. (5 Q. B. Div.) 894 7ft
Delafleld v. Brady 108 N. Y. 524, 529 578
Demarest v. Mayor, etc., of N. Y. . 147 N. Y. 208 873
Deming v. Terminal Ry. of Buffalo. 169 N. Y. 1 27a
Despard v. Churchill. . 53 N. Y. 192 380
Devaynes v. Noble 1 Merivale Ch. R. 572 132
Dolan v. Mayor, etc., of N. Y 68 N. Y. 274, 281 378
Donahue v. State of New York. ... 112 N. Y. 142 484
Donovan v. Bd. of Education of N.Y. 85 N. Y. 117.. . . 1ft
Donovan v. Mayor, etc., of N.Y... 83 N. Y. 291 418
Dowdney v. Mayor, etc., of N. Y. . 54 N. Y. 186 368
Dudley v. Mayhew 3 N. Y. 9 330
Duncan v. State 88 Ala. 31 226
Dwyerv.Bd.of Education of N.Y. 165 N. Y. 613 20
E.
Eggler v. People 56 N. Y. 643 95
Ehmer v. Title Guarantee & Trust \ -g^ N Y 10 75
Co.
Elgin Nat. Watch Co. v. Illinois ) 179 u S 665 30
Watch Case Co )
Emery's Case 107 Mass. 172 261
Engliss v. Furniss 2 Abb. Pr. 333 17T
Ex parte Aruot Carter 166 Mo. 604 261
Ex parte Cohen 104 Cal. 524 261
F.
Parmere* Loan & Trust Co. v. N. ) 150 jj y 410 125
Y. & Northern Ry. Co )
xvi TABLE OF CASES CITED.
PACK.
Fields v. Bland 81 N. Y. 289 401
Fitzgerald v. Moran 141 N. Y. 419 446,451,462
Flynn v. Brooklyn City R. R. Co. . 158 N, Y. 493, 508 125
Foose v. Whitmore 82 N. Y. 405 ... 599
Fox v. Ohio 5 How. (U. S.) 410 261
Frederick v. Lookup 4 Burr. 2018, 2022 312
Freeman v. Grant 182 N. Y. 22, 28 479
Freyv. Torrey 70 App. Div.166; 175 N. Y.501. 317
G.
Gamble v. Queens Co. Water Co. . . 123 N. Y. 91 126
Garnsey v. Rhodes ... 188 N. Y. 461, 467 152, 154
Garvey v. McDevitt .* . . . 72 N. Y. 556 823
Gerard v. McCormick 130 N. Y. 261 180
Gibson v. Am. Mut. L. Ins. Co. .. 37 N. Y. 580 159
Gilbert v. Finch 178 N. Y. 455 288
Gildersleeve v. Bd. of Education / -^ ^^ pf 2qi jq
ofN. Y )
Glaciusv. Black. 58 N. Y. 145. 446,451,452
Graham v. City of New York 167 N. Y. 85 873
Gray v. Manhattan Ry. Co 128 N. Y. 499, 509 812
Griffen v. Manice 166 N. Y. 188 167
Grovesv.Rice 148N.Y.227 408
EL
Hague v. City of Philadelphia .... 48 Penn. St. 527 446
Hall v. Kellogg 16 Mich. 185 485
Hall v. State 40 Ala. 698 226
Halsey v. McCormick 18 N. Y. 296 145
Hamilton v. Royal Ins. Co 156 N. Y. 327 407
Hatch v. Leonard 165 N. Y. 485 78
Ha wes v. Oakland 104 U. 8. 450 126
nawley v. Whalen 64 Hun, 550 7
Hayden v. Pierce 144N. Y. 512 407
Heiserv. Mayor, etc.. of N. Y.... 104 N. Y 68 827 830
Henderson v. N. Y. C. R. R. Co... 78 N. Y. 423, 433 804, 805
Herring v. N.Y..L.E.&W.R.) 105N.Y>34o m
R. Co >
Higgins v. Eagleton 155 N. Y. 466 497
Higgins v. Mayor, etc.. of N. Y. . . 181 N. Y. 128 373, 874
Hill v. Bd. Suprs. Rensselaer Co... 119 N. Y. 844 406
Holbrook v. Finney 4 Mass. 566 458, 459
Holloway v. Southmayd 189 N. Y. 890, 418 145
Holmes v Mead 52 N. Y. 882 699
Horgan v. Mayor, etc., of N. Y. . . . 160 N. Y. 516, 528 452, 454
Horn v. Town of New Lots 83 N. Y. 100. 479
Hoyt v. Thompson 5 N. Y. 820 457
TABLE OF CASES CITED. xvii
PAGE.
Hughes v. Co anty of Monroe 147 N. Y. 49 61
Hunt v. Chapman 51 N. Y. 555 8
Huron W. W. Co. v. City of Huron. 80 L. R. A. 848 252
J.
Jackson v. GKdley 18Johns. 98 157
Jennings v. Van Schaick 108 N. Y. 530, 532 482
Johnson v. State 94 Ala. 35 226
Jones v. Yates 9 Barn. & Cress. 532, 588 177
Jorgensen v Squires 144 N. Y. 280 482, 483
Joslyn v. Rockwell 128 N. Y. 334 429
K.
Kalish v. Kalish .* 166 N. Y. 377 322
Kane v. N. Y. El. R. R. Co 125 N. Y. 165 417
Keller v. Phillips 39 N. Y. 351... 78
Kerr v. Dougherty 79 N. Y. 328 540. 541, 544
Kidd v. Pearson 128 U. S. 1 62
Kincaid v. Archibald 78 N. Y. 193 74
Kinney v. Kiernan 49 N. Y. 164 400
Kirchnerv. New Home 8. M. Co.. 135 N. Y. 182 118
Knapp v. City of Brooklyn 97 N. Y. 520 437
L.
La Beau v. People 34 N. Y. 222, 232 95
Ladd v. jfitna Ins. Co 147 N. Y. 478,482 497
Lake Shore & M. S. Ry. v. Roach.. 80 N. Y. 339, 844 579
Lambv.Lamb, 146 N. Y. 317 152
Langdonv. Mayor, etc.. of N. Y... 98 N. Y. 129 419
Lathers v. Keogh 109 N. Y. 583 368
Lathrop v. Bramhall 64 N. Y. 865 109
Lawrence v. Cooke 104N.Y.682 600
Lawton v. Steele 119 N. Y. 226, 236 211
Leland v. Cameron 81 N. Y. 115 485
Lennon v. Mayor, etc., of N. Y. . . . 55 N. Y. 361 34
Leslie v. Lorillard 110 N. Y. 519, 535 126
Lyddy v. Long Island City 104 N. Y. 219 418
Lyonv.Hcrsey 108 N. Y. 264 149
M.
McDonald v. Metr. Street Ry. Co. . 167 N. Y. 66 118, 497
McGregor v. Bd. of Education of I ^7 N Y 511 20
N. Y )
McLaren v; McMartin 86 N. Y. 88 527
McNeilly v. Continental L. Ins. Co. 66 N. Y. 23 191
McVeany v. Mayor, etc., of N. Y.. 80 N. Y 185 378
B
xviii TABLE OF OASES CITED.
PAGE.
Mager v. Grima 8 How. (U. 8.) 490, 493.. 492
Magounv. Illinois Tr.&Sav. Bank. 170 U. 8. 283 492
Manhattan Ry. Co. v. Kent 80 Hun, 569; 145 N. Y. 595. ... . 217
Mansfield v. Mayor, etc. of N. Y . . 165 N. Y. 208 278
Marcus v. St. Louis Mut. L. Ins. j. aq m v 625 191
Co )
Marden v. Dorthy 160 N. Y. 60 118
Matter of Board of Education of ) jgg n Y 456 459 866
Matter of Bridgford 65 Hun, 227 85
Matter of Brooklyn Elevated R. ) ^ Hun> j65 m g^
R. Co )
Matter of Callahan 152 N. Y. 320 52a
Matter of Cape May &D. B. N. Co. 51 N. J. Law, 78, 82 380
Matter of Carpenter 131 N. Y. 86 590
Matter of City of Brooklyn 73 X. Y. 179 417, 41&
Matter of City of New York 168 N. Y. 139 417
Matter of Cusack v. Bd. of Edu- > 174 ^ y 136 20
cation f
Matterof Dows ie7 N. Y. 227, 231. . 492, 493, 494, 495
Matter of Estate of Butler 88 N. Y. 897 380
Matterof Gantert 186 N. Y. 106. 520
Matter of Gardner 140 N. Y. 122 600
Matterof Home P. 8. F. Assn . . . . 129 N. Y. 288 .. . 470
Matter of Hughes 95 N. Y. 55 380
Matterof Long Island Water Sup- I 80 Abb. (N. C.) 36, 44 25*
ply Co )
Matterof Mayor, etc., of N.Y.... 167 N. Y. 627, 628 866
Matter of Munn 165 N. Y. 149 827
Matterof N.Y. C. &H. R. R. R. Co. 15 Hun, 63 304
MatterofN.Y.,Lack.AW.Ry. ) 29 Hun j 304
Co )
Matterof Peck v. Cargill 167 N. Y. 891 265
Matterof Pell 171 N. Y. 48 495
Matterof Prout 128 N. Y/70,74 380
Matter of Union Village v. John- ) -« «^ ^ ^ ^ ^ g^
sonville R. R. Co >
Matter ofUtica.C. &S. V. R. R. Co. 56 Barb. 456 804
MatterofVanderbilt..: j 50 App. Div. 246; 163 N. Y. 597. 49*
( 498
Matter of Whitmore v. Vil. of ) jg« jq- y ^ ^ ^ g21>
Tarrytown ;. 1
Maxmilian v. Mayor, etc. , of N. Y . 62 N. Y. 160 61
Mayer v. Mayor,'etc, of N. Y 101 N. Y. 285 34
Meigs v. Roberts 162 N. Y. 871 427, 428
Messenger v. City of Buffalo 21 N. Y. 196, 199 452, 45a
TABLE OF CASES CITED. xix
rxoK.
Meyers v. City of New York { ** Misc' **■ m> M APP' Div- AOQ
J J i 631 438
Mills v. Parkhurst 126 N. Y. 89. . 391, 392, 894, 401, 402
Mills v. Van Voorhies 20 N. Y. 412 458
Miskimins v. Shaver 58 Pac. Repr. ( Wyo.) 411 261
Missanov. Mayor, etc., of N. Y.... 160 N. Y. 123 61
Mollcrv. Tuska 87 N. Y. 166 893, 400
Moore v. Mayor, etc., of N. Y 73 N. Y. 288 454
Morel Bros. & Co. Ltd. v. Earl of ) L R (1 R R im) u 81
WestMoreland ) '
Morris v. Rexford 18 N. Y. 552 400
Morton v. Woodbury 153 N. Y. 251 548
Mulhollaud v. Mayor, etc., of N. Y. 113 N. Y. 631, 632 452, 458, 454
Murphy v. People 68 N. Y. 590 349
N.
Newman v. Bd. Suprs. Living-^ 45 ^. Y. 676 479
ston Co S
Newman v. Metr. El. Ry. Co 118 N. Y. 618 305
N. Y. & W. U. Tel. Co. v. Jewett. 115 N. Y. 166 101
Northern Pac., L. & M. Co. v. ) u Dre 3 m
East Portland J
O.
O'Brien v. Commonwealth 89 Ky. 354 226
O'Leary v. Bd. of Education °U 93X Y 1 19
Orr v. Oilman 183 U. S. 278 493
P.
Palmer v. Phoenix Mut. I.. Ins. Co. 84 N. Y. 63, 70 191
Parsons v. Lyman 20 N. Y. 108 880
People v. Benham 160 N. Y. 402 226
People v. Brooks 131 N. Y. 321 , . 152, 158
People v. Brown , 130 Cal. 591 ,226
People v. Buchanan.. . 145 N. Y. 1 226
People v. Buffalo Fish Co 164 N. Y. 98 360
People v. Cannon 189 N. Y. 32, 43 861
People v. Cassidy 138 N. Y. 612. 618 350
People v. Conroy 97 N. Y. 62, 80 346
People v. Deacons 109 N. Y. 374, 377 348
People v. Druse 103 N. Y. 655, 656 95
People v. Ferraro 161 N. Y. 865 846
People v. Giles 152 N. Y. 186 473
People v. Harris 136 X. Y. 423 226
People v. Hendrickson 8 How. Pr. 404 225
xx TABLE OF CASES CITED.
PAftE.
People v. Jaelinc 103 X. Y. 182, 109 348
People v. Lamb 2 Keyes, 360, 371 95
People v. Lambier 5 Demo, 9 417, 418
People v. McElvaine 125 N. Y. 596, 605 285
People v. Majone 91 X. Y. 212... 346
People v. Mather 4 Wend. 229 259
People v. Most 128 N. Y. 108 155, 158
People v. Xileman 8 N. Y. S. R. 300 226
People v. O'Brien Ill X. Y. 1 50
People v. Pallister 138 X. Y. 601 288
People v. Rathbone 145 X. Y. 434 9
People v. Scott 153 N. Y. 40 236
People v. Sharp 107 X. Y. 427 267
People v. Snyder 41 N. Y. 397 485
People v. Spiegel 143 N. Y. 107, 113 361
People v. Stout 4 Park. Cr. Cas. 71 226
People v. Straight 148 N. Y. 570 228
People v. Turner 117 X. Y. 227 106
People v. Turner 145 N. Y. 457 427, 428
People v. Van Wormer 175 X. Y. 188, 195 358
People v. Webster 139 X. Y. 73, 85 152
People v. Weutz. . 37 X. Y. 303 ... 349
People ex rel. Allen v. Hagan 170 X. Y. 52 469
People ex rel. Callahan v. Bd. of ) i~i \ y 169
Education *
People ex rel. Christie v. Bd. of ) *»~ ^ y ^
Education of X. Y J"
20
20
People ex rel. Cooper v. Registrar l u±y Y 19 427
of Arrears '
People ex rel. Danzigcr v. P. E. { 138 N y 180 471 472
House of Mercy *
People ex rel. Fisk v. Bd. of Edu- ) j^ ^ y ^7 21
cation of X. Y >
People ex rel. Garabliug v. Choi well. 6 Abb. Pr. 151 519
People ex rel. Hackley v. Kelly. ... 24 X. Y. 74. . 258, 260, 263, 265, 268
People ex rel. Hoffman v. Bd. of / 141 x Y 86 20
Education of X. Y f
People ex rel. Hoffman v. Bd. of ) - ,0 ^ y «o 01
Education of X. Y S
People ex rel. Kennedy v. Brady. . . 166 X. Y. 44 465
People ex rel. Kukn v. P. E. ) 133 x. Y. 207 471
House of Mercy )
People ex rel. Martin v. Scully 56 App. Div. 302 372
People ex rel. Miller v. Wurstcr . . . 149 X. Y. 549 518
People ex rel. Murphy v. Bd. of ) 1 70 x Y 607 20
Education of X. Y )
People ex rel. Murphy v. Kelly. ... 76 X. Y. 475 436
TABLE OF CASES CITED. xxi
People ex rel. X. Y. El. Lines ) i07 N. Y. 598, 606 61
Co. v. Squire ?
People ex rel. North v. Feather- { ™ jt y 110 440
stonhaugh )
People ex rel. Onondaga Co. ^. 14- v v i(U ttst
Sav. Bank v. Butler i
People ex rel. Rodgers v. Coler .... 166 N. Y. 1 488, 489, 440
People ex rel. Sims v. Bd. Fire ) 7« jj y 407 riu
Comrs S
People ex rel. Steinaon v. Bd. of { 15a v v 135 20
Education of N. Y >
People ex rel. Tate v. Dalton 41 App. Div. 458; 100 N. Y. 686. 464
People ex rel. Taylor v. Forbes 143 N. Y. 219 265
People ex rel. Toohey v. Webb. . . 50 N. Y. S. R. 46 519
People ex rel. Tweed v. Liscoirib. . . 60 N. Y. 559 470
People ex rel. Van Riper v. N. Y. J ina v- y an* 470
C. Protectory i
People ex rel. Ziegler v. Coilis 17 App. Div. 448 488
Perry v. Commonwealth 8 Qrattan, 682 158
Petersen v. Chemical Bank 32 N. Y. 21 880
Pettit v. State 185 Ind. 398 226
Peyser v. Mayor, etc. , of N. Y 70 N. Y. 497 479
Phelps v. Racey 60 N. Y. 10. 14 860
Pierson v. People 79 N. Y. 424 226
Place v. N. Y. C. & H. R. R. R. Co. 167 N. Y. 845, 847 497
Plymouth v. County Comrs 16 Gray, 341 519
Presser v. Illinois 116 U. 8. 252 261
Preston v. Hunt 7 Wend. 58 460
R.
RadclifiTs Exrs. v. Mayor, etc., of ) 4 jt Y 195 82"*
Brooklyn »
Rawson v. Lampmau 5 N. Y. 456 459
Reilly v. City of Albany 112 N. Y. 30 454
Ritchie v. McMullen 79 Fed. Repr. 522 124
Robinson v. Govers 138 N. Y. 425 62
Rodermund v. Clark 46 N. Y. 354 ... 401
Rothmilier v. Stein 143 N. Y. 581 124
Ruggles v. American Central Ins. t 114 N y 415 JM
Co f
Ruloff v. People 45 N. Y. 218 358
s.
Sagev. Culver 147 N. Y. 245 126
Sage v. Mayor, etc., of N. Y 154 N. Y. 70 417
St. Louis v. State 8 Neb. 405 296
xxii TABLE OF CASES CITED.
PAGE.
Sands v. Hughes 58 N. Y. 295, 297 ... 480
Sattcrlee v. Kobbe 178 N. Y. 91 427
Schluter v. Bowery Savings Bank. . 117 N. Y. 125 380
Scholey v. Mumford eO N. Y. 498 479
Schultz v. Third Ave. R.R.Co.... 89 N. Y. 242 152
Searcy v. Miller 57 Iowa, 613 158
Sharp v. Rutland & B. R. R. Co.. 27 Vt. 149 61
Sheldonv. AtlanticF. & M. Ins. Co. 26 N. Y. 460 190
Sinclair v. Jackson 8 Cow. 548 105
Smith v. City of Newburgh 77 N. Y. 130 251
Smith v. Jansen 8 Johns. Ill, 116 312
Smith v. People 47 N. Y. 830 68
Smith v. Smith 134 N. Y. 62. 117
Smith v. Smith 116 N. C. 886 261
Staubro v. Hopkins 28 Barb. 265 157
Starks v. People 5 Denio, 106 152, 154
Starr v. Child 5 Denio, 599 145
State v. Duestrow 137 Mo. 44 226
State v. Fortner 43 Iowa, 494 849
State v. McKean 86 Iowa, 848 849
State v. Watkins 9 Conn. 47 226
Steinbach v. Relief F. Ins. Co 77 N. Y. 498 401
Steinson v. 3d. of Education of { 158 N. Y. 125; 165 N. Y. 481. . . 19
N. Y J «*
Stephens v. People 19 N. Y. 549 226
Sternaman v. Metr. L. Ins. Co 170 N. Y. 18 187
Stevens v. Hauser 39 N. Y. 802 457, 461
Stevens v. Kelley 78 Maine, 445 147
Stewart v. Union Mut. L. Ins. Co. . 155 N. Y. 257 184, 194
Stole v. Elliott 45 Iowa, 486 158
Story v. N. Y. Elevated R. R. Co. . 90 N. Y. 122 307, 417
Story v.N. Y. & H. R. R. R. Co.. 6 N. Y. 85,91 812
Stow v. Tifft 15 Johns. 458 458
8tricklin v. Commonwealth 83 Ky. 566 226
Strusburgh v. Mayor, etc., of N. Y. . 87 N. Y. 452 479
Sweeny v. City of New York 178 N. Y. 414 299
Syracuse Water Co. v. City of) 116 N. y. 167 252
Syracuse. )
T.
Talmage v. Third Nat. Bank 91 N. Y. 531, 536 479
Taylor v. Mayor, etc., of N. Y 67 N. Y. 87, 94 298
Teele v. Fonda 7 Johns. 251 460
Ten Eyck v. Whitbeck 156 N. Y. 841, 349 497
Terhune v. Mayor, etc., of N. Y. . . 88 N. Y. 247 378, 374
Thomas v. People, 67 N. Y. 218 95
TABLE OF CASES CITED. xxiii
PAQK.
Thompson v. Burhans 61 N. Y. 52 105
Thompson v. Northern Pac. Ry. Co. 93 Fed. Repr. 884. ... . 101
Thurlow v. Comm. of Mass 5 How. (U. S.) 504, 583 211
Titus v. Poole 145 N. Y. 414 407
Troy & Boston R. R. Co. v. Lee. . . 13 Barb. 169 804
Truaxv. Thorn 2Barb.l56 461
Trustees Canandarqua Academy ! 90 N Y 618 461
v. McEechnie »
Tuttle v. Jackson 6 Wend. 213, 224 457, 461
Twitchell v. Commonwealth 7 Wall. 821 261
U.
United States v. Perkins 163 U. 8.625, 628 492
United States v. Realty Co 163 U. S. 427 439
Upington v. Corrigan 151 N. Y. 143 149
V.
Tan Bcnthuysen v. Sawyer 86 N. Y. 150 427
Van Bokkelin v. Ingersoll 5 Wend. 815, 840 811, 312
Van Dolsen v. Bd. of Education of 1 m N y m m 2Q ^
Van Weel v. Winston.. 115 U. S. 228 437
Tillage of Pelham Manor v. New I 143 ^ y 532 44 56
Rochelle Water Co > '
Tillage of St. Johnsville v. Cronk ... 55 App. Div. 683 218
Vroom, Adtnx.,v. Van Home 10 Paige Ch. 549 880
W.
Ward v. Hudson River Bldg. Co. . . . 125 N. Y. 230 114
Welles v.Yates 44 N. Y. 525 117
Wells v. Town of Salina 119 N. Y. 280 25t
Wheeler v. Sweet 137 N. Y. 435 274, 278
Wilkins v. EUett 108 U. S. 256 880
Wilson v. Mechanical Orguinette Co. 170 N. Y. 542, 552 812
Withers v. Buckley 20 How. (U.S.), 84 261
Wood v. Amory 105 N. Y. 278 487
Wood v. Poughkeepsie Mut. Ins. Co. 82 N. Y. 619 191
Woodruff v. Rochester&P. R. R. Co. 108 N. Y. 89 446, 451, 452
TABLE OF CASES
AFFECTED BY DECISIONS REPORTED IN THIS
VOLUME.
AFFIRMED. ^ob.
Adams v. Elwood 61 App. Div. 622 106
Adams v. Elwood 72 App. Div. 682 106
Arkenburgh v.Little 49 App. Div. 686 531
Baer v. McCullough 72 App. Div. 628 97
Becker v. Krank 75 App. Div. 191 545
Boyd v. Daily 85 App. Div. 581 613
Braiidegee v. Metropolitan L. Ins. Co. 78 App. Div. 629 589
Brown v. City of New York. 78 App. Div. 361 571
Central Trust Co. of N. Y. v. N. ) ^ App. Div. ^ 546
Y. <fc Westchester Water Co. S
City of Buffalo v. D.,L.&W.R.|. w A m 'm g^
R.Co S HF
City of New York v. McCaldin ) 81 App. Div. 623 585
Bros. Co S
Cole v. Andrews 83 App. Div. 285 874
Conolly v. Hyams 84 App. Div. 641 403
Counore v. Noone 84 App. Div. 632 592
Deshong v. City of New York 74 App. Div. 284 475
Dickescheid v. Betz 80 App. Div. 8 611
Dykman v. U. S. Life Ins. Co 82 App. Div. 645 299
Eckerson v. City of New York 80 App. Div. 12 609
Episcopo v. Mayor, etc., of N. Y, . . 80 App. Div. 627 572
Farquhar Co. v. Truesdell 66 App. Div. 616 547
Goldberg v. Jacocks 86 App. Div. 626 569
Gunnison v. Board of Education ... 80 App. Div. 480 11
Hughes v. Mayor, etc., of New York. 84 App. Div. 347 585
Joseph v. Raff 82 App. Div. 47 611
Knickerbocker Ice Co. v. Forty- \
second Street & G. S. F. R. i &5 App. Div. 530 408
R. Co J
Knowles v. City of New York 74 App. Div. 632 480
Knowles v. Pennsylvania Steel Co. 77 App. Div. 643 430
Kolb v. Nat.. Surety Co 73 App. Div. 619 233
Lafferty v. Third Ave. R. R. Co. . . 85 App. Div. 592 594
Leggat v. Leggat 79 App. Div. 141 590
Levy v. Huwer 80 App. Div. 499 612
Libby v. Van Dcrzee 80 App. Div. 494 591
Loomis v. City of Little Falls 66 App, Div. 299 31
acxvi TABLE OF CASES AFFECTED.
PAQ*.
Lyons v. City of New York. 82 App. Div. 306 609
McCabc v. City of New York 77 App. Div. 687 587
McNamara v. Willcox 81 App. Div. 686 573
Maas v. German Savings Bank 73 App. Div. 524 877
Mack v. Mayor, etc., of New York. 82 App. Div. 637 573
Mac Knight Flintic Stone Co. v. \
City of New York (Actions 1 l 78 App. Div. 640, 641 586
& 2) )
Marshall v. City of Buffalo 1 . . . 68 App. Div. 601 545
Martin v. City of New York 82 App. Div. 35 371
Matter of Brooklyn Teachers' As- j 85 App Div 47 m
sociation )
Matter of Brown v. Supreme) 66 App. Div. 259 132
Court of Order of Foresters )
Matter of Clinton v. Boeckel 79 App. Div. 645 564
Matter of Cruikshank 82 App. Div. 645 566
Matter of Ferris 86 App. Div. 559 607
Matter of Garver 84 App. Div. 262 386
Matter of Gawne 82 App. Div. 874 597
Matter of Gibbes 84 App. Div. 510 565
Matter of Hatch 75 App. Div. 609 592
Matter of Holmes 79 App. Div. 264 608
Matter of Holmes 79 App. Div. 267 604
Matter ofHowe 86 App. Div. 286 570
Matter of Merritt 86 App. Div. 179 608
Matter of N. Y. C. &H. R. R. R. Co. 79 App. Div. 648 561
Matter of Pieris 82 App. Div. 466 566
Matter of Putnam 75 App. Div. 615 612
Matter of Rice 81 App. Div. 822 570
Matter of Rose 75 App. Div. 615 587
Matter of Weidenfeld v. Keppler. . 84 App. Div. 285 562
Matter of Wray Drug Co 88 App. Div. 634 602
Niles v. N. Y. C. & H. R. R. R. Co. 69 App. Div. 144 119
O'Brien v. Supreme Council C. B. L. 81 App. Div. 1 597
O'Keeffe v. City of New York. . . 86 App. Div. 626 297
People v. Adams 85 App. Div. 890 851
People v. Ennis P"Ji °0UIIIy °°Urt' ** *" tt0«
1 C 1902 289
People v. Filkin 88 App. Div. 589 548
People v.Gaimari \Ge»enX 8ffn8> ^ *°* 0.
F l County, February 27, 1908. . . 84
People v. Thames & Mersey Ma-) s5App.Div.e23 531
rine Ins. Co '. '
People v. Tobin \ 8uPrcme S°a\ N"w T°* ^
( County, December 23, 1MB. . . 878
People v. Wadbams < General Term Third Depart-
y ( ment, May 81, 1895 9
TABLE OF CASES AFFECTED. xxvii
People v White \ Supreme Court, Oswego County,
( December 16, 1901 381
People ex rel. Arnold v. Feitncr. . . 76 App. Div. 620 562
People ex rel. Beebe v. Warden, etc. 86 App. Div. 626 577
People ex rel. Blair v. Folks 86 App. Div. 626 565
People ex rel. Chirurg v. Calder. . . 75 App. Div. 625 568
People ex rel. Clark v. Keeper 80 App. Div. 448 465
Peopleexrel. Consolidated T. & ) g5App.piv.542 567
E. Subway Co. v. Monroe. ... )
People ex rel. Gress v. Hilliard 80 App. Div. 507 604
People ex rel. Harris v. Gill 85 App. Div. 192 606
People ex rel. Leazenbce v. Part- ) m . Div 648 m
ridge J
People ex rel. Lewisohn v. O'Brien. 81 App. Div. 51 253
People ex rel. McBain v. Wis wall. . 84 App. Div. 635 571
People ex rel. McGee v. Partridge. 84 App. Div. 641 605
Peopleexrel. N. Y. City & W. I w A ^ m 577
R. Co. v. Bd. R. R. Comrs. . . . J
People ex rel. Smith v. Weeks 87 App. Div. 610 194
People ex rel. Steers v. Depart-} ge App. Dlv. 52i 602
mentof Health >
People ex rel. Van Linda v.) 86 App. Div. 636 577
Warden J *
People ex rel. Williams v. Mc- ) 85 App. Div. lfl2 606
Donough )
People ex rel. Young v. Sturgis. . . 85 App. Div. 20 563
Potev. Sicher 66 App. Div. 614 574
Potter v. Boyce 73 App. Div. 883 551
Rochester & Lake Ontario Water { q4Add djv 71 35
Co. v. City of Rochester. J
Rossv.King 66 App. Div. 617 550
Rundell v. Swartwout 78 App. Div. 628 591
Sandles v. Levenson 78 App. Div. 306 610
Shelderberg v. Village of Tona- j 70 A Div. 628 549
wanda J
Simis v.White 85 App. Div. 618 561
Skillin v. Maibrunn 75 App. Div. 588 588
South Buffalo Ry. Co. v. Kirkover. 86 App. Div. 55 801
Southgate v. Continental Trust Co. 74 App. Div. 150 588
Standtke v. The Switz Conde Co. . . 64 App. Div. 625 546
Stannard v. Green 62 App. Div. 631 575
Stevens v. Union Railway Co 75 App. Div. 602 607
Strucks v. Corning 68 App. Div. 650 548
Taylor v. Thompson 74 App. Div. 320 168
Trenton Potteries Co. v. Title G. ) w . Div m ^
AT. Co I
Tripp v. Chester 66 App. Div. 623 575
xxviii TABLE OF CASES AFFECTED
Twelfth Ward Bank v. Samuels. . . 71 App. Div. 168
Venner v. Farmers' Loan & Trust )
Co )
Wagner v. Metropolitan Street )
Venner v. Farmers' Loan & Trust j> ^ A Div 2?1 ^
- , 79 App. Div. 591 610
Walsh v. Hyatt 74 App. Div. 20 550
Watertown Carriage Co. v. Hall. . . 75 App. Div. 201 318
Weidman v. City of New York. ... 84 App. Div. 321 586
Young v. Dietzgen Co 72 App. Div. 618 590
REVERSED.
Barrett Chemical Co. v. Stern 71 App. Div. 616 27
Brink v. Stratton 64 App. Div. 331 150
Buckhout v. City of New York 82 App. Div. 218 368
City of New York v. Baird 74 App. Div. 288 269
Cohnfeld v. Tanenbaum 58 App. Div. 810 126
DcGarmo v. Phelps 64 App. Div. 591 455
Grube v. Hamburg- American { ^ A Diy m m
Packet Co S
Hicks v. Monarch Cycle Mfg Co. . . 68 App. Div. 134 Ill
Holly v. Gibbons 67 App. Div. 628 520
Howard Iron Works v. Buffalo ) 81 App Div. 886 1
Elevating Co »
Lehigh Valley Ry. Co. v. Adam ... 70 App. Div. 427 420
Matter of Bd. of Water Comrs. ) n A Div ^ ^
of White Plains ' *
Matter of Brookfleld 78 App. Div. 520 138
Matter of Brooklyn Union El. R. ) ^ A pp. Div. 567 213
R. Co )
Matter of Delano 82 App. Div. 147 486
Matter of Torge 86 App. Div. 211 324
People v. Montgomery \ Supreme Court. Delaware"
' I County, June 23, 1902 219
People v. Pierson 80 App. Div. 415 201
Peopleexrel.Dinsraorev.Vande-j. g8 App. Div. 54 500
water )
People ex rel. Lester v. Eno 84 App. Div. 55 513
People ex rel. Ryan v. Wells 86 App. Div. 270 462
Russell v. Prudential Ins. Co 73 App. Div. 617 178
Seger v. Farmers* Loan & Trust Co. 78 App. Div. 293 589
Smith v. Cheaebrough 82 App. Div. 578 . . 317
Sundheimer v. City of New York . . 77 App. Div. 53 495
Trunkey v. Van Sant 83 App. Div. 272. 535
Wallace v. International Paper Co. 84 App. Div. 88 424
Walsh v. Ontral N. Y. Tel. & I „ A Djv , m
Tel. Co J
TABLE OF CASES AFFECTED. xxix
TAQE.
Wanamaker v. Weaver 73 App. Div. 60 75
Wilcox v. Am. Tel. & Tel. Co 73 App. Div. 614 115
MODIFIED.
Keeker v. City of New York 77 App. Div. 635 441
Hall v. City of New York 79 App. Div. 102 293
APPEAL DISMISSED.
Brott v. Davidson 87 App. Div. 29 605
I^ane v. Brooklyn Heights R. K. Co. 85 App. Div. 85 557
Manhattan Fire Ins. Co. v. Fox 74 App. Div. 271 553
Matter of Elias 60 App. Div. 630 547
Matter of Schlivinski v. Maxwell. ... 80 App. Div. 313 568
Matter of Wray Drug Co. (No. 2). . . 88 App. Div. 634 555
People ex rel. Clifton v. De Bragga. 73 App. Div. 579 557
People ex rcl. Dinsmore v. Vande- ) ^ App I)iy ^ ^
water '
People ex rel. McCullough v. Wil- | m App I)iy m 574
son '
People ex rel. Standard W. M. Co. J w App I)iy ^ m
v. Monroe '
Voisin v. Thames & Mersey M.J. M App I)iy m 5?6
Ins. Co '
Walter v. Tomkins 71 App. Div. 21 553
Zapf v. Carter 70 App. Div. 395 576
MOTION TO DISMISS APPEAL DENIED.
Board of Education v. Board of j ?6 App I)iy ^ ^55
Education '
Boyd v. New York Security &) e» App. Div. B81 556
Trust Co *
Matter of Wray Drug Co. (No. 1). . 82 App. Div. 645 554
Werner v. Hearst 76 App. Div. 375 556
APPEAL WITHDRAWN.
City of Buffalo v. Delaware, L. \ m A T).y m gw
&W. By. Co S
Glennon v. Erie R. R. Co 86 App. Div. 397 552
TABLE OF CASES
DISTINGUISHED, ETC., IN OPINIONS KEPORTED
IN THIS VOLUME.
PAGE.
Babbagc v. Powers 130 N. Y. 281, distinguished. ... 484
Beekman v. Bigham 5 N. Y. 366, distinguished 105
Beekman v. Bonsor 23 N. Y. 299, distinguished 542
Boyd v. United States 116 U. S. 616, distinguished 859
Brotherton v. People 75 N. Y. 159, approved 286
City of Johnstown v. Frederick 35 App. Div. 44, distinguished. . 218
Conner v. Reeves 108 N. Y. 527, distinguished. ... 274
Counselman v. Hitchcock 142 U. S. 547, approved 267
tw^oo „ tc^ki^ i 1 Merivale Ch. R. 572, distin-
Devaynes v. .Noble <
i guished 132
Flynn v. Brooklyn City R. R. Co. . 158 N. Y. 493, distinguished. ... 125
Garvey v. McDevitt 72 N. Y. 556, distinguished 324
Graham v. City of New York 167 X. Y. 85, distinguished 373
Herring v. N. Y., L. E. & W. R. ) m N y m distinguished. ... 101
Hill v. Bd. Suprs. Rensselaer Co. . . 119 N. Y. 344, distinguished. . . . 40G
Jennings v. Van Schaick 108 N. Y. 530, distinguished 484
Jorgensen v. Squires 144 N. Y. 280, distinguished 484
Kerr v. Dougherty 79 N. Y. 328, distinguished 542
Manhattan Ry. Co. v. Kent J80 Hun« «* 145 N" Y' ™>
I distinguished 218
Matter of Peck v. Cargill 167 N. Y. 391, distinguished. ... 265
Meigs v. Roberts 162 N. Y. 371, distinguished 428
N. Y. & W. U. Tel. Co. v. Jewett,. 115 N. Y. 166, distinguished. ... 101
People v. Benham 160 N. Y. 402, distinguished 226
People v. Buchanan 145 N. Y. 1, distinguished 226
People v. Harris 186 N. Y. 423, distinguished. ... 226
People v. Scott 153 N. Y. 40, distinguished 226
People v. Turner 145 N. Y. 457, distinguished 428
People ex rel. Hackley v. Kelly 24N.Y. 74, discussed and limited. 265
People ex rel. Taylor v. Forbes 143 N. Y. 219, distinguished 265
People ex rel. Ziegler v. Collis 17 App. Div. 448, distinguished. 484
Sinclair v. Jackson 8 Cow. 543, distinguished 105
Smith v. Smith 134 N. Y. 62, distinguished 118
Steinson v. Bd. of Education of NY. 165 N. Y. 431, distinguished. .. . 373
Stewart v. Union Mut. L. Ins. Co. . 155 N. Y. 257, distinguished. ... 186
Sweeny v. City of New York 173 N. Y. 414, followed 298
XXX
TABLE OF CASES DISTINGUISHED. xxxi
PACK,
Taylor v. Mayor, etc., of N. Y 67 N. Y. 87, followed 29a
Thompson v. Burhans 61 N. Y. 52, distinguished 105
Thompson v. Northern Pac. Ry. Co. 98 Fed. Repr. S84, distinguished. 101
Village of St. Johnsville v. Cronk.. 55 App. Div. 633, distinguished. 2ia
Welles v. Yates 44 N. Y. 525, distinguished. ... 117
Wheeler v. Sweet 137 N. Y. 435, distinguished .... 274
Cases Decided
IN THE
COTJET OF APPEALS
OF THE
State of New Yoek,
COMMENCING OCTOBER 6, 1903.
Howard Iron Works, Kespondent, v. Buffalo Elevating
Company, Appellant.
County Courts — Jurisdiction of, over Counterclaims Exceeding
$2,000 in Amount. While the jurisdiction of County Courts in actions
for the recovery of money only is limited by section 14 of article VI of the
Constitution and section 340 of the Code of Civil Procedure to actions
in which the complaint demands judgment for a sum not exceeding
$2,000, such limitation is bnsed wholly on the demand of the complaint,
and. after jurisdiction of a cause of action has once been acquired, a
County Court has, under section 348 of the Code of Civil Procedure, " the
same jurisdiction, power and authority in and over the same and in the
course of the proceedings therein, which the Supreme Court possesses in
a like case; and it may render any judgment, or grant either party any
relief, which the Supreme Court might render or grant in a like case; "
and so the general jurisdiction to entertain common-law actions, where the
demand for judgment in the complaint does not exceed $2,000, carries
■with it the power to try and render any judgment upon any counter-
claim irrespective of the amount that the defendant may plead in his
answer to the cause of action stated in the complaint.
Howard Iron Works v. Buffalo Elevating. Co., 81 App. Div. 386, reversed.
(Argued June 1, 1903; decided October 6, 1903.)
Appeal, by permission, from a judgment of the Appellate
Division of the Supreme Court in the fourth judicial depart-
ment, entered March 18, 1903, upon an order which reversed
an interlocutory judgment of the Erie County Court over-
ruling a demurrer to a counterclaim.
1
J
2 Howard Iron "Works v. Buffalo El. Co. [Oct.,
Points of counsel. [Vol. 176.
The nature of the action, the facts, so far as material, and
the questions certified are stated in the opinion.
Alfred Z. Becker and Tract/ C. Becker for appellant.
The constitutional grant of jurisdiction to County Courts
extends to counterclaims and is unlimited as to them. (Const,
of N. Y. art. 6, § 14; Code Civ. Pro. §§ 340, 348; Meade v.
Langford, 56 Hun, 279 ; Thomas v. Harmon, 46 Hun, 75 ;
Bellinger v. Craigue, 31 Barb. 534 ; Gates v. Preston, 41
N. T. 113; Buckhout v. Rail, 28 Hun, 484; Sweet v.
Flannigan, 61 How. Pr. 327 ; Chegaray v. Mayor, etc., 13
N. Y. 220; P. T Co. v. Harmon, 43 App. Div. 348.)
Unlimited jurisdiction over counterclaims in general in
County Courts is necessary for the proper and orderly admin-
istration of justice. {Newell v. People, 7 N. Y. 9 ; People
v. Potter, 47 N. Y. 375 ; Lake Co. v. Rollins, 130 U. S.
662 ; People ex rel. v. Wetnple, 125 N. Y. 485 ; Uawley v.
Whalen, 64 Hun, 550; Buckhout v. Roll, 28 Hun, 484;
Fullmer v. Fullmer, 6 Wkly. Dig. 42 ; HeigU v. Willis, 50
Hun, 588; Taylor v. Mayor, ete., 82 N. Y. 10; Cornell v.
Donovan, 14 N. Y. S. R. 687; HaU v. Hall, 30 How.
Pr. 51.)
Loran L. Lewis, Jr., and William C. Carroll for respond-
ent. There is no specific grant of jurisdiction to the County
Court over counterclaims. (Freez v. Ford, 6 N. Y. 176 ;
Gilbert v. York, 111 N. Y. 544 ; Judge v. Hall, 5 Lans. 69 ;
McCormack v. P. R. R. Co., 49 N. Y. 303 ; Burnes v.
O'Neill, 10 Hun, 494 ; Bake v. Milkr, 15 Hun, 358 ; Ham-
burger v. Bake?; 35 Hun, 356 ; Wilkins v. Williams, 3 N.
Y. Supp. 897; Leonard v. Lynch, 62 How. Pr. 56; A. B.
Co. v. Barcley, 70 App. Div. 260 ; Thomas v. Harmon, 46
Hun, 75 ; Avery v. TTi^w, 24 Hun, 548.) The County Court
has no jurisdiction over the counterclaim contained in defend-
ant's answer. (Cregan v. Lovell, 88 N. Y. 258 ; Buckhout v.
Roll, 28 Hun, 484; irccwi v. Met. St. Ry., 38 App. Div.
254 ; Pennypacker v. TIazclwood, 61 S. TV. Rep. 153 ; WaZ-
1903.] Howard Iron Works v. Buffalo El. Co.
N. Y. Rep.] Opinion of the Court, per O'Brien, J.
cott v. McNew, 60 S. W. Kep. 18; Avery v. Willis, 24 Hun,
548 ; Code Civ. Pro. § 2949.)
O'Brien, J. The plaintiff's complaint was tiled in the
County Court and judgment was demanded for about $900,
alleged to be due from the defendant for work, labor and
materials performed and furnished by the plaintiff at the
defendant's request.
The answer, among other things, states that the work, labor
and materials described in the complaint were furnished and
performed under a contract between the parties whereby the
plaintiff contracted to manufacture and install at defendant's
elevator, in a good, workmanlike manner, certain machinery
described, and the plaintiff warranted the work and materials
free from all defects and agreed that the machinery so con-
tracted for should be sufficient and suitable to move, control
and regulate the movements of two movable elevator towers, for
which the defendant was to pay over $3,000. That the plaintiff
undertook to perform this contract, but the work and materials
were so defective and unsuitable that the work was not only
worthless, but by reason of the default on the part of the
plaintiff to perform the contract the defendant sustained dam-
ages in the sum of $30,000, and this sum was, upon these
facts, interposed as a counterclaim in the action.
The plaintiff demurred to the counterclaim upon the ground
that the court had no jurisdiction of the subject-matter thereof
since the counterclaim demanded a judgment against the
plaintiff for more than $2,000. The County Court overruled
the demurrer and gave judgment upon the issue of law in
favor of the defendant. The Appellate Division has reversed
this judgment, by a divided court, and has certified to this court
two questions as follows :
First. Is the County Court without jurisdiction over defend-
ant's counterclaim herein because the amount demanded in said
counterclaim exceeds $2,000 ?
Second. If the jurisdiction of the County Court over coun-
terclaims is limited, as to amount, to counterclaims wherein
4 Howard Iron Works v. Buffalo El. Co. [Oct.,
Opinion of the Court, per O'Brien, J. [Vol. 176.
the amount demanded does not exceed $2,000, is such objec-
tion to defendant's counterclaim herein properly taken by
demurrer ?
The substantial question presented is whether upon the face
of the pleadings the County Court has jurisdiction to try the
matter involved in the counterclaim and to render judgment
thereon. The facts set forth by the defendant in that part of
the answer amount to an allegation that the plaintiff did not
perform the contract sued upon, and that in itself is matter of
defense. But the demurrer deals with the answer only so far
as it is a counterclaim and demands an affirmative judgment,
and hence the decision below must be deemed to relate only
to that phase of the answer.
The provisions of the present Constitution and the Code
prescribing the jurisdiction of County Courts are as follows :
Article six, section fourteen of the Constitution enacts : " The
existing County Courts are continued * * * County
Courts shall have the powers and jurisdiction they now pos-
sess, and also original jurisdiction in actions for the recovery
of money only, where the defendants reside in the county, and
in which the complaint demands judgment for a sum not
exceeding two thousand dollars. The legislature may here-
after enlarge or restrict the jurisdiction of the County Courts,
provided, however, that their jurisdiction shall not be so
extended as to authorize an action therein for the recovery of
money only, in which the sum demanded exceeds two thou-
sand dollars, or in which any person not a resident of the
county is a defendant." The Code (§ 340) follows this pro-
vision of the Constitution and limits the jurisdiction in cases
for the recovery of money only by the demand of judgment
in the complaint, which must be a sum not exceeding two
thousand dollars.
The view of the case that prevailed in the learned court
below would produce some curious results in practice. In
this case it is admitted on all sides that the court had com-
plete jurisdiction of the action. The objection is that it has
no jurisdiction of the defense by way of counterclaim. It is
1903.] Howard Iron Works v. Buffalo El. Co.
N. Y. Rep.] Opinion of tne Court, per O'Brien, J.
said that there is ample power to hear, determine and award
judgment on the plaintiffs claim, but no power to try or give
judgment on the defendant's counterclaim, although it arises
out of the very transaction stated in the complaint, and the
only reason for this contention is that it is stated in the plead-
ing at too large a sum. The large claim stated in the answer
may fade away to a very small one after the proofs at the
trial are all in, but it is argued that this makes no difference,
since the court is without jurisdiction to take any proofs on
the merits of the claim. An irresponsible party could implead
his neighbor in the County Court in an action wherein he
demands just $2,000. The defendant sued may have a valid
counterclaim which he regards as of no value except for defen-
sive purposes, but if it amounts to more than $2,000 he cannot
make use of it as a Counterclaim to defeat the plaintiffs claim.
If he has no other defense he must submit to have judgment
pass against him. If he attempts to set it up to the extent of
$2,000 he must release the balance, since the general rule is
that a party cannot split up his claim into fragments and have
a separate action upon each fragment. So that a defendant
who has been brought into the County Court by the act of
the plaintiff in selecting his forum, may have a valid and
meritorious defense, but his hands are so tied that he is unable
to avail himself of it by reason of the very magnitude of his
claim. It is quite clear that a party may in this way select a
forum for the litigation in which he has a strategic advantage
over his adversary.
The mind does not readily accept the reasoning and argu-
ments that lead to such conclusions. The first impression is
that the argument must be faulty at some vital point, and I
think the error is to be found in the attempt to enlarge by
construction and analogy the express restrictions which have
been placed upon the jurisdiction of the County Court by the
Constitution and the statute. The restriction as to the amount
of the claim is based wholly on the demand of the complaint,
but the learned court below has determined the question of
jurisdiction upon the demand in the answer. The point of
6 Howard Iron Works v. Buffalo El. Co. [Oct.,
Opinion of the Court, per O'Brien, J. [Vol. 176.
the decision is that not only is the jurisdiction limited to cases
where the complaint demands judgment for a sum of money
not exceeding $2,000, but to cases where the counterclaim
contained in the answer does not exceed the same amount.
This conclusion is the result of argument and analogy quite
outside the words of the Constitution and the statute.
Conceding all that has been said in the learned court below
concerning the analogy between the cause of action stated in
the complaint and the cause of action stated in the answer by
way of counterclaim, the fact still remains that there is noth-
ing in the Constitution or the statute that forbids a defendant,
when sued in the County Court,, from interposing any defense
that he may have to the cause of action stated in the com-
plaint, and if it be a counterclaim exceeding $2,000, he is
not forbidden to plead it, even though an affirmative judg-
ment in his favor would result. The power of the court to
render the proper judgment is not limited by the amount of
the counterclaim, when jurisdiction of the action is once
obtained, but the amount demanded in the prayer of the com-
plaint is the sole test upon that question. In this case when
the complaint wras served the court acquired jurisdiction of
the action and consequently of any defense to it that grew
out of the transaction stated in the cause of action, even
though it was a counterclaim stated to amount to more than
$2,000. When the plaintiff elected to bring his action in the
County Court, the right to try and render judgment upon
any counterclaim that the defendant had followed the case as
a necessary incident of the jurisdiction, without regard to its
amount. The jurisdiction of the County Court is a question
that generally concerns the defendant and is usually raised by
a defendant sought to be subjected to its jurisdiction. In this
case the question is raised by the plaintiff who selected that
court as his forum and now contends that the defendant is
barred by reason of the limited jurisdiction from interposing
defenses that it clearly could interpose had the plaintiff selected
any other court. The contention ought not to be sustained
unless it appears to rest firmly upon authority, reason and
1903.] Howard Iron Works v. Buffalo El. Co. 7
N. T. Rep.] Opinion of the Court, per O'Brien, J.
argument so clear and satisfactory as to be conclusive, and it
6eems to me that it does not.
It cannot be doubted that the legislature has power under
the Constitution to enact that when the County Court acquires
jurisdiction of an action by the service of a proper complaint,
the court may entertain any defense which the defendant,
sued in that court, may have, even though it be a counter-
claim alleged to be more than $2,000, and that, we think, is
the effect, substantially, of section three hundred and forty-
eight of the Code of Civil Procedure. That section points out
with great clearness what the power of the court is, after juris-
diction once acquired : " Where a county court has jurisdiction
of an action or special proceeding, it possesses the same juris-
diction, power and authority in and over the same, and in the
course of the proceedings therein, which the Supreme Court
possesses in a like case ; and it may render any judgment or
grant either party any relief which the Supreme Court might
render or grant in a like case * * *." If the present
action had been brought in the Supreme Court no question
could be raised with respect to the power to try and render
judgment upon the counterclaim, and the plaintiff, having
impleaded the defendant in the County Court, upon a com-
plaint that conferred full jurisdiction upon that court, it
follows that it had power to render any judgment in favor of
the defendant, or grant it any relief that the Supreme Court
could in a like case.
There is no express or implied restriction upon the power
of the County Court to try issues and render the proper judg-
ment in an action where it has once acquired jurisdiction. It
may entertain an action to foreclose a mortgage where the
real property mortgaged is situate within the county, and in
such cases it. may render judgment for a deficiency, whatever
the amount may be. (Hawley v. Whalen, 64 Hun, 550.)
That of course is one of the incidents that necessarily follow
the power to render judgment in foreclosure cases. In so
far as it is sought to recover a deficiency judgment in such
cases upon the bond the action is one for the recovery of
8 Howard Iron "Works v. Buffalo El. Co. [Oct.,
Opinion of the Court, per O'Brien, J. [Vol. 176.
money only and the defendant may interpose, by way of
counterclaim, any common-law cause of action he may have
against the plaintiff that tfould tend to defeat or diminish
the claim for a deficiency judgment. (Hunt v. Chapman,
51 N. Y. 555 ; Bathgate v. Haskin, 59 K Y. 533.) There
is no constitutional or statutory provision that in terms
authorizes such practice, but it is a necessary conclusion from
the general power of the court to entertain foreclosure actions.
So the general jurisdiction to entertain common-law actions
where the demand for judgment in the complaint does not
exceed $2,000 carries with it the power to try and render
judgment upon any counterclaim that the defendant may
plead in his answer to the cause of action stated in the com-
plaint. If there can be any reasonable doubt with respect to
this proposition, based upon grounds of reason and justice,
it is made clear by the section of the Code above cited. That
section is broad enough in its language to permit a defendant
in the County Court to interpose any counterclaim that he
may have to the plaintiff's demand, and it is safe to assert as a
reasonable inference that it was intended by that provision to
enable the parties to settle all controversies arising from the
transaction stated in the complaint. It could not have been
intended that the defendant should be debarred from inter-
posing defenses such as appeared in the answer in this case.
These views sufficiently indicate the answer to the questions
certified.
We think that the demurrer to the counterclaim was not
well taken, and that the judgment of the Appellate Division
should be reversed, with costs, and that of the County Court
affirmed.
Parker, Ch. J., Gray, Bartlett, Haiqht, Cullen and
Werner, JJ., concur.
Judgment reversed.
1903.] People v. Waphams.
N. Y. Rep.] Opinion of the Court, per Pabkeb, Ch. J.
The People of the State of New York, Respondent, v.
Frederick E. Wadhams, Appellant.
Constitutional Law — Prohibition against Use of Free Railroad
Passes by Public Officers Applies to Palace and Sleeping Cab
Passes — Const. Art. XIII, § 5. A public officer, who accepts the privi-
lege of riding in a palace or sleeping car accorded to him by a free pass,
accepts a free pass and free transportation within the meaning of section 5
of article XIII of the Constitution prohibiting the use by a public officer
of free transportation.
(Argued June 4, 1903; decided October 6, 1903.)
Appeal from a judgment of the General Term of the
Supreme Court in the third judicial department, entered May
31, 1895, affirming a judgment in favor of plaintiff entered
upon the report of a referee.
This action was brought for the purpose of ousting the
defendant from his office as notary public, for having accepted
from the Wagner Palace Car Company a free pass for his use
and benefit, and having used the same upon the cars of said
Wagner Palace Car Company while being transported over
the line of the Delaware and Hudson Canal Company, in viola-
tion of section 5 of article 13 of the State Constitution.
Frederick E. Wadhams for appellant.
John Otmneen for respondent.
Parker, Ch. J. We held in People v. Rathbone (145 N.
Y. 434) that a notary public is a public officer within the
meaning of the provision of the State Constitution (Art. XIII,
§ 5) prohibiting a public officer or a person elected or appointed
to public office under the laws of this state from receiving
from any person or corporation, or making use of " any free
pass, free transportation," etc. And necessarily, therefore,
the conclusion was reached in that case that the defendant,
having received and made use of a free pass over a railroad,
the People could maintain an action against him to have his
office adjudged to be forfeited.
J
10 People v. Wadhams. [Oct.,
Opinion of the Court, per Parker, Ch. J. [Vol. 176.
The difference between that case and this one is that the
pass received by Rathbone entitled him to ride upon the lines
of the corporation issuing the pass, while in this case the
defendant paid his fare, but occupied a seat in a palace car
belonging to another corporation, and did not pay for it, but
instead presented to the conductor a pass issued by the Wagner
Palace Car Company in the name of defendant entitling him,
without charge, to accommodations in the palace or sleeping
cars of that company running over any railroad in New York
state. Accommodations of this kind have come to be regarded
as a necessity by a considerable portion of the traveling public,
and rather than not have the benefit of such accommodations a
substantial percentage of the traveling population pay for the
privilege of enjoying them.
We hold — and we think argument is not needed in support
of the proposition — that a public officer who accepts the
privilege of riding in a palace or sleeping car accorded to
him by a pass such as was issued in this case, accepts a free
pass and free transportation within the meaning of that por-
tion of section 5 of article XIII of the Constitution which
reads as follows : " No public officer, or person elected or
appointed to a public office, under the laws of this state, shall
directly or indirectly ask, demand, accept, receive or consent
to receive, for his own use or benefit, or for the use or benefit
of another any free pass, free transportation, franking privi-
lege or discrimination in passenger, telegraph or telephone
rates, from any person or corporation, or make use of the
same himself or in conjunction with another."
It follows that the judgment ousting defendant from his
office as notary public should be affirmed, without costs.
Gray, O'Brien, Bartlett, Haight, Cullen and Werner,
JJ., concur.
Judgment affirmed.
l'JU3.] Gunnison v. Bd. of Education. 11
N. Y. Rep.] Statement of case.
Walter B. Gunnison, Respondent, v. The Board of Educa-
tion of the City of New York, Appellant.
1. New York City — Board op Education, Not the City, the
Proper Party Defendant in Suits Relating to School Funds.
Under the provisions of the charter of the city of New York (L. 1901,
ch. 466) the only relation that the city has to the subject of public educa-
tion is as the custodian and depositary of school funds, and its only duty
with respect to that fund is to keep it safely and disburse the same accord-
ing to the instructions of the board of education. The city, as trustee,
has the title to the money, but it is under the care, control and adminis-
tration of the board of education, and all suits in relation to it must be
brought in the name of the board. A suit to recover teachers' wages is
a suit affecting or in relation to the school funds and under the express
words of the statute must be brought against the board.
2. Same. An action brought by a school teacher in the city of New
York, to recover wages or salary, when the only object and purpose of
such action is to establish the validity of a disputed claim and liquidate
the amount, must be brought against tho board of education and not
against the city.
3. Board of Education an Independent Corporation, Not a City
Agency. The mere fact that the legislature has made the board of educa-
tion a member of one of the administrative departments of the city of
New York does not indicate an intent to devolve upon the city itself, act-
ing through one of its departments, the state functions which were
formerly directly imposed upon tho board as a separate public corpora-
tion and to relegate it to an agency similar to that occupied by the police,
fire, health and other city departments, of which the city is the responsible
head ; nor does the fact that the charter (§ 1055) expressly authorizes
the board to bring suits affecting school property exclude the idea that it
may also defend them and prevent it from becoming a party defendant in
such cases; nor does section 1614, requiring future suits against the city
to be in the corporate name of the city of New York, have any applica-
tion, since such suits are not against the city but are against another and
independent corporation, namely, the board of education.
The fact that the charter enumerates among the administrative depart-
ments of the city the board of education, calling it the "Department of
Education," of which the board is the head, does not make any change in
the corporate powers, duties or liabilities of the board and, therefore, does
not affect its legal capacity to sue and be sued.
Nor does the fact that the board is the head of the department exempt
it from such suits because it is not a mere agent of the city but is au
12 Gunnison v. Bd. of Education. [Oct.,
Statement of case. [Vol. 176.
independent corporate body whose acts are not the acts of the city and for
which the city is not responsible.
Gunnison v. Board of Education, 80 App. Div. 480, affirmed.
(Argued June 2, 1903; decided October 6, 1903.)
Appeal, by permission, from an interlocutory judgment
entered April 4, 1903, upon an order of the Appellate
Division of the Supreme Court in the second judicial depart-
ment, which reversed an order of Special Term sustaining a
demurrer to the complaint and overruled such demurrer.
The following questions were certified: "I. Ought the
demurrer to the complaint in this action be sustained ?
" II. In an action predicated upon a claim for salary alleged
to be due teachers under the charter of the Greater New
York, is the board of education the proper party defendant ?
"III. In an action to recover teachers' wages or salaries
should not the action be brought against the city of New
York?"
The nature of the action and the facts, so far as material,
are stated in the opinion.
George L. Hives, Corporation Counsel (James McKeen
of counsel), for appellant. There is no legislation anywhere
providing that the board of education shall be the defendant
in any case. The limit of express legislative sanction is that
it may be plaintiff in the particular class of cases which have
relation to school property. (L. 1901, ch. 466, §§ 1055, 1614.)
Ira Leo Baml>erger for respondent. The board of educa-
tion of the city of New York is not merely a department of
the city government, but an independent corporation. An
action by a teacher for salary is properly brought against the
board and not against the city. (Donovan v. Bd. of Educa-
tion^ 85 N. Y. 117; Gildersleeve v. Bd. of Education, 17
Abb. Pr.201 ; Hatnv. Mayor, etc., 70 N. Y. 459 ; Ridenour
v. Bd. of Education, 15 Misc. Rep. 418; Allen v. City of
Brooklyn, 8 Blatchf. 535.)
1903.] GrUNNISdN V. Bd. OF EDUCATION. 13
N. Y. Rep.] Opinion of the Court, per O'Brien, J.
O'Brien, J. The question in this case is presented by the
demurrer to the complaint. The action was to recover an
alleged balance of . wages or salary of the plaintiff and other
teachers in the public schools of Brooklyn. The defendant
demurred to the complaint upon the ground that upon its face
it did not state a cause of action, and that the city of New
York and not the board of education was the proper party
defendant. The only question argued is whether the defend-
ant is liable to be sued on account of the matters and things
stated in the complaint.
The complaint contains several causes of action separately
stated, but all of the same nature and character. One of the
causes of action is to recover a sum of money stated to be due
to the plaintiff from the defendant as salary or wages, or a
balance thereof, as a teacher in one of the public schools of
Brooklyn. The other causes of action are to recover a balance
of salary or wages alleged to be due from the defendant to the
other teachers named in the complaint, the claims for the same
having been assigned to the plaintiff. The plaintiff on all the
claims demanded judgment for $1,465.20, with the interest
thereon from May 1st, 1899.
The complaint avers and the demurrer admits the following
facts : (1) That the defendant is a public municipal corpora-
tion. (2) That prior to the month of April, 1899, the plain-
tiff, being a duly licensed and qualified teacher, was duly
appointed by the board a teacher in the public schools, and
rendered services in that capacity, performing all the duties
of the position. (3) That the salary of the position had been
duly fixed by the board at five hundred dollars per month for
the month of April, 1899, and but $400 has been paid. (4)
That sufficient funds were appropriated to the defendant and
apportioned to the Brooklyn schools to pay the plaintiff's
salary. (5) That more than ten days before the commence-
ment of the action the plaintiff presented the claim to the
defendant and its financial officer having power to audit and
pay the same, and payment or audit was refused. (6) Pre-
cisely the same facts with respect to the employment of the
14 Gunnison v. Bd. of Education. [Oct.,
Opinion of the Court, per O'Brien, J. [Vol. 176.
other teachers named, with the amount of salary of each per
month, and the balance remaining unpaid and the assignment
of each of these claims to the plaintiff. (7) That all the
claims were at least thirty days before the commencement of
the action presented to the comptroller of the city of New
York for payment, but that he neglected and still neglects to
adjust or pay the same.
On the face of the pleadings the facts are, therefore, admitted
that the defendant, a public municipal corporation employed
the plaintiff and the other teachers named in the complaint to
teach in the public schools at the agreed salary or compensa-
tion alleged, and as to each teacher that it has refused to pay
a part of the compensation, and that the sum specified in the
complaint remains unpaid, although the services were fully
rendered. It remains to inquire what reasons, if any, exist or
can be urged why the defendant cannot be sued on account
of the matters and things alleged in the complaint, and why
the plaintiff must reflort to the city for the recovery of his
claims, since that is the contention and the only argument in
support of this appeal.
It is admitted on the record that the defendant is a public
municipal corporation. It is admitted that it employed the
plaintiff and the other teachers at a fixed compensation and
that a part of this compensation still remains unpaid. This
appeal cannot be sustained unless it is shown that these facts
do not constitute a cause of action against the defendant and
do constitute a cause of action against the city of New York.
The city charter provides that the defendant, the board of
education, shall administer all moneys available for educa-
tional purposes, and, on the facts stated in the complaint and
admitted in the demurrer, it is clear that the plaintiff cannot
maintain any action against the city. The mere fact that the
public money for the support and conduct of the schools is
deposited in the city treasury does not affect the liability of
the board of education to be sued, nor does it, upon the facts
stated, create any liability against the city. The city has the
custody of the money, but the board must administer and
1903.] Gunnison v. Bd. of Education. 15
N. Y. Rep.] Opinion of the Court, per O'Brien, J.
expend all school funds as the representative of the school
system, and the financial officer of the city cannot pay out
any part of these funds except upon the order and audit of
the board. In most of the other counties of the state the
county treasurer or some county or town officer has the cus-
tody of the school funds, but it cannot be paid out or dis-
bursed except upon the order or audit of the trustees of the
proper school district, and these districts are declared to be
corporate bodies, thus giving them the power of independent
action. (Laws of 1894, chap. 556, art. VI, sees. 42, 43, 44.)
So, in the city of New York, the city, of its own motion, has
no power to expend or pay out any part of the school funds
for the payment of teachers. The plaintiff can make no
valid claim against the city until the board of education has
audited it through its own proper officer. It is important,
therefore, to bear in mind that the plaintiff has no claim
against the city until the salary alleged to be due to him and
the other teachers has been audited or directed to be paid by
the board, and it is admitted by the demurrer that the board
has refused to audit the claim or in any manner direct its pay-
ment. Hence it is a disputed claim.
It was always the law and is the law still, that an action will
lie against the board of education to recover a judgment upon a
disputed claim which it has refused to audit or allow. (Dannat
v. Mayor, etc., of N. T.y 66 N. T. 585-588.) A suit at law
against the board is the proper proceeding to compel the adjust-
ment or liquidation of the claim. The procedure for the collec-
tion of claims such as this was very clearly laid down by this court
in the case last cited, in this language : " Under the system
that is provided, there was but one way for the board of educa-
tion to discharge the obligations assumed by its contracts, and
that was by a draft drawn upon the city chamberlain, and so
long as it was willing to give such a draft its creditors could make
no further claim upon it. If it was willing to give a draft
and had done all the law required of it, it could not be
sued.
" It could not draw the money itself as the draft is required
16 Gunnison v. Bd. of Education. [Oct.,
Opiuion of the Court, per O'Brien. J. [Vol. 176.
to be made payable to the person entitled to receive the same,
and hence a suit to compel it to pay would bo an idle proceed-
ing and in contravention of the statute. But if it refused to
give a draft, then the creditor's remedy would be against it.
If the claim was undisputed, he might by mandamus compel
the giving of the draft. If the claim was disputed, he could
sue the board of education in its corporate capacity and hav-
ing thus established his claim then procure his draft. But he
would have no claim against the city until he had in someway
obtained such a draft as the law required. When he came
with such a draft it would be the duty of the chamberlain to
pay. If he refused, having the funds in the treasury, he
could be compelled by mandamus to pay, or could probably in
an ordinary action be made personally liable for his misfeas-
ance." The liability of the city begins only when it refuses
to honor or pay a draft drawn upon it in favor of the creditor
by the board of education. There is not, and never was, any
law that would permit a school teacher in any of the schools
of the city to bring a suit against the city for salary when the
right to the salary was disputed by the board of education,
and when that body refused to auditor allow it in any form, as
in this case.
It is apparent from the general drift of the argument that
the learned counsel for the defendant is of the opinion that
the employment .of the teachers in the public schools and the
general conduct and management of the schools is a city func-
tion in the same sense as it is in the case of the care of the
streets or the employment of police and the payment of their
salaries and compensation ; but that view of the relations of
the city to public education, if entertained, is an obvioas mis-
take. The city cannot rent, build or buy a schoolhouso ; it
cannot employ or discharge a teacher, and has no power to
contract with teachers with respect to their compensation.
There is no contract or official relation, express or implied,
between the teachers and the city. All this results from the
settled policy of the state from an early date to divorce the
business of public education from all other municipal interests
1903.] Gunnison v. Bd. of Education. 17
N. Y. Rep.] Opinion of the Court, per O'Brien, J.
or business, and to take charge of it as a peculiar and separate
function through agents of its own selection, and immediately
subject and responsive to its own control. To this end it is
enacted in the general laws of the state that all school trustees
and boards of education shall be corporations with corporate
powers, which, of course, includes the power to sue and be
sued in all matters relating to the control and management
of the schools. (School Law, tit. 8, sec. 7 ; Gen. Corp. Law,
sec. 3, page 974.) These corporate powers are expressly
conferred upon this defendant by the city charter. (Sec.
1062.) It needs no argument to prove that a corpora-
tion is liable to be sued upon any obligation that it has
incurred or any contract made in the transaction of the
business for which it was created or for any breach of duty
involved in the exercise of its powers. The only purpose for
which the defendant was created a corporate body was to con-
duct a system of public education in a designated division of
the state and manage and control the schools therein. This
obviously includes the employment and payment of teachers,
and none of these powers or functions are conferred upon
the city as such. The only relation that the city has to the
subject of public education is as the custodian and depositary
of school funds, and its only duty with respect to that fund is
to keep it safely and disburse the same according to the
instructions of the board of education. The city as trustee
has the title to the money, but it is under the care, control and
administration of the board of education, and all suits in rela-
tion to it must be brought in the name of the board. (Sec.
1055.) A suit to recover teachers' wages is a suit affecting or
in relation to the school funds, and, hence, under the express
words of the statute must be brought against the board.
The defendant is by the terms of the new charter given all
the powers and subjected to all the obligations and duties of
all previous boards of education or school boards. (Sec. 1058.)
It is expressly required to administer all moneys raised for
educational purposes (Sec. 1060), and, hence, the obligation to
2
18 GlJNNI80N V. Bd. OF EDUCATION. [Oct.,
Opinion of the Court, per O'Brien, J. [Vol. 176.
pay the teachers is not only a matter implied in the duty of
administration, but inheres in the contract of employment.
The defendant is expressly declared to be the representative of
the school system of the city in its entirety, and if the defend-
ant is such representative the city is not. (Sec. 1064.) The
board is given power to purchase, lease or condemn all real
property required for school purposes, and to sell such real
and personal property as may not be required for the conduct
and management of the schools. (Sec. 1066.) It has power
to appoint its own officers, clerks and assistants, all superin-
tendents, architects, janitors, auditors and other employees
necessary in the care of the school property, or in the conduct
and management of the schools, and to fix the salary or com-
pensation to be paid them (Sees. 1067 and 1068), and, finally,
no member of the board of education can .hold any office of
emolument under the county, state or city government. (Sec.
1061.) It will thus be seen how completely, under the scheme
of the city charter, the subject of public education is sepa-
rated from all other municipal functions.
The proposition sought to be established by this appeal is
that a corporate body created for the express purpose of con-
ducting a system of public education, exercising such vast
powers and charged with such important duties, is not subject
to be sued by a school teacher to recover wages or salary,
when the only object and purpose of such a suit is to establish
the validity of a disputed claim and liquidate the amount. It
is quite certain that during the last fifty years, and ever since
a board of education existed in the city of New York, actions
of this character have been brought and maintained against
it without any question raised or doubt suggested that it was
not the proper party. The board still has every power that
it ever possessed, and it is still subject to every duty or obli-
gation that ever was imposed upon it. A brief review of
6ome of the cases in this and other courts will show that there
never was and cannot now be any doubt with respect to the
liability of the board of education of the city of New York to
be sued upon any disputed claim or liability arising out of the
1903.] Gunnison v. Bd. of Education. 19
N. Y. Rep.] Opinion of the Court, per O'Brien, J.
exercise of its corporate functions as the sole representative
of the school system of the city. In Donovan v. Board of
Education of N. Y. (85 N. Y. 117) the purpose of the act of
1851 as amended in 1853, and under which the board was
organized, was considered. This court noted the fact that
under the original statute the title to all school property was
vested in the city, as it is now, but that by the amendment
of 1853 " all suits in relation to the same should be brought
in the name of said board ; " a provision that, as we have
seen, has been incorporated into the present charter. The
purpose of the amendment is stated in these words : " It
was apparently one purpose of the provision to rebut the
inference of any power in the city government to control
the schools, arising from the clause in the original section
vesting in the city title to school property." The conten-
tion of the learned counsel for the defendant in tlie case
at bar would be a long step in the direction of remanding
the schools to the control of the city, since it must logically
follow, if the city is the only proper party to be sued for
teachers' wages, it must be the party, and not the board, in
control of the schools. The management, government and
control of the schools is clearly vested in the defendant as a
corporate body, and it has been repeatedly held that it was
liable to be sued upon its contracts, inclnding the obligation
to pay the wages of teachers. (Steinson v. Board of Educa-
tion of 1?. r., 165 N. Y. 431 ; S. C, 158 N. Y. 125 ; Coul-
ter v. Bd. of Education of N. Y., 63 N. Y. 365 ; O'Leary v.
Bd. of Education of N. Y., 93 N. Y. 1 ; Gildersleeve v.
Bd, of Education of JT. Y, 17 Abb. Pr. 201.) The case
first above cited is a very recent one, and the action for teach-
ers' wages was not only sustained, but it was distinctly held
that the legal relation between the board and the teacher is
one of contract. It is scarcely necessary to add that if the con-
tract of a teacher is with the board it is not with the city, and
it would seem to be plain that the proper party to be sued is
the one that made the contract, and not a party that did not
make it and had no power to make it. This court has still
20 Gunnison v. Bd. of Education. [Oct.,
Opinion of the Court, per O'Brien, J. [Vol. 176.
more recently entertained and decided controversies between
the teachers in the public schools of the city and the board of
education concerning the right or power of the board to remove
teachers or reduce their grade or compensation. (Matter of
Cusack v. Board of Education^ 174 N. Y. 136 ; People ex rel.
Callahan v. Board of Education, 174 N. Y. 169.) If it be
true, as now contended, that the board is nothing but a mere
organ or agency of the city, and that.the latter represents the
schools, it is plain that the proceedings in these cases were
brought against the wrong party, and should have been brought
against the city instead of the board. It is quite remarkable,
however, that neither of the counsel in the case nor any mem-
ber of the several courts through which the cases passed, ever
thought of the point now raised. The reason for this is very
obvious, since the board, being charged by the charter with the
control and management of the schools and the administration
of the school funds, and representing the entire school system,
it was the proper party and the proceedings would not lie against
the city, as it had no power to restore the teachers to their
former positions or to fix their compensation.
Actions and special proceedings of almost every conceivable
character have been so often brought and maintained against
the defendant, the board of education, that the present con-
tention would seem to be without any support in reason or
authority. Suits have been repeatedly maintained against the
defendant on contracts for building or repairing schoolhouses
{McGregor v. Board of Education of ST. Y, 107 N. Y. 511 ;
Van DoUen v. Bd. of Education of JT. Y, 162 K Y. 446 ;
DtvtjtT v. Bd. of Education of N. Y, 165 N. Y. 613) ; and
so mandamus proceedings have been instituted against the
board to compel the delivery of papers {People ex rel. Hoff-
man v. Board of Education of N. Y, 141 N. Y. 86); to
compel payment of teachers' salaries (People ex rel. Steinson
v. Bd. of Education of JT. Y, 158 K Y. 125) ; or to com-
pel an increase of salary or reinstatement of teachers (PeopU
ex rd. Murphy v. Board of Education of N. Y, 173 N. Y.
607 ; People ex rel. Christie v. Bd. of Education of JV. Y.>
1903.] Gunnison v. Bd. of Education. 21
N. Y. Rep ] Opinion of the Court, per O'Brien, J.
167 N. Y. 626) ; and certiorari proceedings have been brought
to review certain acts of the board (People ex rel. Hoffman
v. Board of Education of N. F., 143 N. Y. 62 ; People ex
rel. Fish v. Board of Education of N. T., 142 N. Y. 627).
It is quite trne that some of the special proceedings referred
to above were not successful, but were denied or dismissed ;
that, however, was not for the reason that the defendant was
not the proper party. The decisions in those cases were based
upon the merits of the controversy or on some question of prac-
tice, but no one suggested that the suit or proceeding should
have been brought against the city instead of the board of
education, and that is the sole question with which we are now
concerned.
It is very plain, therefore, that the contention on the part
of the defendant, that it is not the proper party to be sued,
cannot be sustained unless it is shown that some change has
been made in the statute law on the subject by recent legisla-
tion. The contention of the learned counsel for the defend-
ant is that a radical change has been effected in this respect,
and that the law of fifty years has been superseded by the
enactment of the present charter, and it is upon this conten-
tion that this appeal must stand or fall. The following state-
ment, taken from the printed argument in support of the
appeal, clearly discloses the counsel's position with respect to
the right to bring suits of this character against the board of
education under the present charter : " What we urge in this
connection is that the legislature in making the board of edu-
cation a member of one of the administrative departments of
the city of New York have devolved upon the city itself,
acting through one of its departments, the state functions
which were formerly directly imposed upon the board of
education as a separate public corporation. In this respect
the board of education is similar to the department of health,
the police department, the department of public charities and
the fire department. No more reason exists for holding that
a common-law action should be brought against the board of
education than for holding that such actions should be
22 Gunnison v. Bd. of Education. [Oct.,
Opinion of the Court, per O'Brien, J. [Vol. 176.
brought against the members of the other departments above
named."
Surely, if this is a correct statement of the law a great
change has been made, which we would naturally expect to
find clearly expressed in the new charter, since it is in that
charter that we still find all the statutory provisions quoted
above, and notably that provision wherein it is declared that
the board of education shall, in its corporate capacity, repre-
sent the entire school system. If the state has departed from
the settled policy that has prevailed since its organization, of
keeping the work of public education and the control and
management of its schools separate and distinct from all other
municipal interests and business by the selection of its own
agents, and clothing them with corporate powers to represent
the schools, such as school districts and boards of education,
and has devolved these powers and duties directly upon the
city, we would naturally expect to find such a departure and
notable change expressed in language so clear that no doubt
could arise as to this change of policy. If the board cannot
be sued for teachers' wages and the teacher must resort to a
suit against the city, then surely the board must have sunk
into a mere city agency, and it no longer has any use for
independent corporate powers. Public education then becomes
a city function, exposed to the taint of current municipal poli-
tics, and to any and every general mismanagement that may
prevail in city departments.
But we still have the very plain provisions of the charter
declaring that the board is the representative of the entire
school system, and has the power to administer all school
funds, and is vested with the right to manage and control all
school property, followed by the provision that " suits in
relation to such property shall be brought in the name of the
board of education." But the learned counsel for the
defendant explains away all these provisions in his printed
brief in the following words : " There is no express legislation
as to the relation of the board of education to law suits except
that, under the provisions of this section, suits affecting school
1903.] Gunnison v. Bd. of Education. 23
N. Y. Rep.] Opinion of the Court, per O'Bbien, J.
property shall be broitght in its name. There is no language
anywhere providing that the board of education shall be a
defendant in any case. The limit of express legislative sanc-
tion is that it can be plaintiff in a particular class of cases,
which have relation to school property. This special pro-
vision on the subject excludes other cases, and in connection
with the general provision in section 1614 of the charter
above quoted, impels the conviction that the legislature
intended that suits other than such as are here expressly men-
tioned should be brought against the city of New York."
The meaning of this proposition is that under the present
charter the board of education may bring suits as plaintiff, but
cannot be sued as a defendant, and when applied to this case
it means that the board may sue teachers and others for breach
of their contracts, but the teachers and others cannot sue the
board for salary, wages or compensation. No argument is
necessary to refute this proposition. The bare statement that
a corporate body exercising full control and management of
the schools and representing the school system in its entirety
may bring suits in all matters relating to the schools, but can-
nof be sued upon claims or demands arising out of the man-
agement and conduct of the corporate business, is such an
extreme and unreasonable view of the legal relations between
the board and the teachers, that the proposition refutes itself.
We have seen that the policy of this state for more than half
a century has been to separate public education from all other
municipal functions and intrust it to independent corporate
agencies of its own creation, such as school districts and boards
of education, with capacity to sue and be sued in all matters
involved in the exercise of their corporate powers. We have
seen that during this long period of time this court and all
the courts of this state have accepted this rule and acted
upon it, and not until now, and in this case, has any question
been raised with respect to the right of a teacher to bring
suit against the board of education to recover salary or wages.
In no part of the state have suits of this character so fre-
quently arisen as in the city of New York, under the charter of
24 Gunnison v. Bd. of Education, [Oct.,
Opinion of the Court, per O'Bhien, J. [Vol. 176.
that city, and in no instance has any doubt been suggested that
the board was not the proper party defendant or that the city
was. The learned counsel for the defendant must, therefore,
be able to point to some new and plain provision of the
present charter that abolishes the long-settled policy of the
state and reduces the board of education to a mere city
agency, incapable of being impleaded in the courts as a
defendant upon one of the contracts that it made for the
employment of teachers in the schools. He has been able
to point out but two sections that even in his own view
give the slightest support or color of support to his conten-
tion, and it will be seen that neither one of these sections
when fairly examined has any effect whatever upon the pow-
ers, duties and obligations of the defendant as they have
always existed in successive charters and have been applied
by the courts to actions of this character.
The first provision relied upon as a foundation for the radi-
cal change suggested is to be found in section 1644 and reads
as follows : " All future suits by or against the city of New
York as hereby constituted, or against any of the municipal
and public corporations in this act united and consolidated,
shall be in the corporate name of the city of New York."
This section- has not the slightest reference to the board of
education, but simply points out how suits against the city of
New York must be brought. It has no application whatever
to this case, since this is not a suit against the city nor against
any of the political divisions united and consolidated with it,
but against another and independent corporation, namely, the
board of education. The meaning and purpose of this pro-
vision is very obvious. Prior to the enactment of the present
charter the corporate name and style of the city was " The
Mayor, Aldermen and Commonalty of the City of New
York," and all suits had to be brought against it in that name.
(Cons. Act, sec. 26.) In the enactment of the new charter this
provision of course had to be changed, and by the first section,
the old city, with certain other cities, towns, counties and
other political divisions united and consolidated witli it are to
1903.] Gunnison v. Bd. of Education. 25
N. Y. Rep.] Opinion of the Court, per O'Brien, J.
form a new municipal corporation to be known as " The City
of New York." Having changed the name of the city and
having abolished and taken into it various other municipal
corporations theretofore existing, capable of bringing suits
and being sued in the name by which they had been known
before, the legislature thought it wise and necessary to pre-
scribe how and in what name or form the new city was to sue
or be sued. There is nothing new in this provision ; it was
always the law under every charter that suits by or against
the city must be brought in the corporate name, and that
is all that this provision was intended to accomplish or does
accomplish. It does not contain even the most remote
suggestion that suits by or against the board of education,
that had always been brought and maintained by or against
that corporate body, were thereafter to be brought by or
against the city, and does not touch such actions at all, but
leaves them just where they were before. It is an erroneous
idea to suppose that this provision of the charter operated to
make any change with respect to suits against the board of
education which had always been maintained since the board
was organized and given the management and control of the
school system.
The other provision of the present charter, which it is said
is new and makes a radical change with respect to the proper
party defendant in such actions as this, is to be found in sec-
tion 96, where the administrative departments of the city,
fifteen in number, are enumerated. The board of education
is there called the " Department of Education," and the head
of the department is to be called the board of education, and
shall consist of forty-six members. (Sec. 108.) It is difficult
to see how the mere listing of the board of education among
the city departments makes any change in its corporate
powers, duties or liabilities. It possesses every power now
that it ever had, and much more. The legal capacity to sue
or be sued that was always inherent in it as a corporate
body, and in terms conferred by express statute has not been
affected or taken away by calling it " The Department of Edu-
26 Gunnison v. Bd. of Education. [Oct.,
Opinion of the Court, per O'Brien, J. [Vol. 176.
cation." It is still the sole representative of the school system
with exclusive powers to control, manage and administer all
school property and school fnnds. If enumerating the board
as a corporate body among the departments did not make it
any greater than before, it certainly could not make it any less.
It was not shorn of the capacity to be sued which it always
possessed, or of any of its powers or functions, by being pro-
moted to the dignity of a department. Moreover, the pro-
vision was not new. The board of education was made a city
department by the charter of 1873, and under the charter of
Brooklyn, where this case originated, the board of education
was always classified as one of the departments of the city, but
no one ever before supposed that by conferring that title upon
it the legislature thereby deprived it of the capacity to be
sued, which is a common characteristic of all corporate bodies.
But it is said, and this is the reasoning process in support
of the argument, that since an individual head of a depart-
ment cannot be sued for his official acts, it must follow that
the head of a department being a corporate body is likewise
exempt from such suits. That argument rests entirely upon
a non sequitur. The head of a city department who is a
natural person, is a mere agent of the city ; his acts are the
acts of the city and the city alone is responsible for them, but
the board of education is an independent corporate body
created for the particular purpose of exercising specific statu-
tory powers as the sole representative of the school system,
and its acts are in no sense the acts of the city, and the city is
not responsible for them, as this court has often held. The
board is the lineal successor of the old school districts, with
powers much enlarged, and it might just as well be argued that
these districts in the rural part of the state could not be sued,
but that -the action must be brought against the village, the
town or the county. If a great corporate body, exercising
such vast powers as are conferred upon this defendant, cannot
be sued for the wages of teachers that it employs, it would be
difficult to justify such actions against the school districts in
other parte of the state. But the argument that the defend-
1903.] Barrett Chemical Co. v. Stern. 27
N. Y. Rep.] Statement of case.
ant's capacity to be sued is lost in consequence of placing it
upon the list of city departments, if it proves anything at all,
proves too much. If it proves that the defendant cannot be
sued in matters relating to the schools, it must prove that it
cannot sue. If it proves that the board cannot be made a
defendant, it must prove that it cannot be a plaintiff, since the
individual head of a city department has no more capacity to
be sued than to sue. The reasoning and argument by means
of which it is sought to establish the proposition that a cor-
porate body charged with the duties and intrusted with
powers to conduct a system of public education in the chief
city of the state is capable of bringing suits in all matters
relating to the corporate functions, but incapable of being
made a defendant in suits by others in matters growing out of
the exercise of these functions, is certainly not very power-
ful or persuasive. From whatever point this contention is
viewed, it will be found to be without any legal basis. The
facts stated in the complaint and admitted by the demurrer
constitute a good cause of action against the defendant, but
no cause of action whatever against the city. The demurrer
was not well taken, and hence the judgment of the learned
court below overruling it is right, and should be affirmed,
with costs. These views sufficiently cover the questions
certified.
Parker, Ch. J., Gray, Bartlett, Haioht, Cullen and
"Werner, JJ., concur.
Judgment affirmed.
Barrett Chemical Company, Respondent, v. Julius Stern,
Appellant.
Trade Mark— When Common English Words, or a Combination
Thereof, Cannot Be Adopted as Such. An exclusive proprietary
right to the use of a common English word, or a combination of such
words, for the purpose of identifying the class, grade, style or quality
of a commercial article, or for any purpose other than a reference to or
indication of its ownership, cannot be acquired by the prior adoption and
use thereof upon the label of any article, and the subsequent employment
28 Barrett Chemical Co. v. Stern. [Oct.,
Statement of case. [Vol. 176.
of such word or combination of words by another to describe the char-
acter, quality and use of a similar article does not constitute a trespass or
infringement of a trade mark.
Barrett Gliemical Co. v. Stern, 71 App. Div. 616, reversed.
(Argued June 24, 1903; decided October 6, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered April
19, 1902, affirming a judgment in favor of plaintiff entered
upon a decision of the court on trial at Special Term.
The nature of the action and the facts, so far as material,
are stated in the opinion.
Adolph L. Pincoffs and Arthur Furber for appellant.
The use by the defendant of the words " Warranted Chemical
Roach Salt " is no infringement of any trade mark owned by
the plaintiff. (Clotworthy v. Schepp, 42 Fed. R^p. 82 ; C. M.
Co. v. Alcorn, 150 U. S. 460 ; Gessler v. Grieb, 80 Wis. 21 ;
Gihnan v. Hunnewell, 122 Mass. 139 ; L. II. II. D. Co. v.
Stucky, 46 Fed. Rep. 624 : Keasbey v. B. C. Works, 142 N. Y.
467.) This action cannot be maintained on the ground that
the defendant has been guilty of unfair competition. {Day v.
Webster, 23 App. Div. 601 ; F W. Co. v. I. W. Co., 179 U.
S. 665 ; C. Co. v. Marshall, 97 Fed. Rep. 785 ; Fischer v.
Blank, 138 N. Y. 244 ; S. Mfg. Co. v. J. Mfg. Co., 163 U. S.
169 ; Riggins v. II. JS. Co., 144 N. Y. 462 ; C. C. Co. v. Max-
ton, L. R. [App. Cas. 1899] 336.)
Charles B. Meyer for respondent. Plaintiff's word
"Roachsault" is a valid trade mark for an insecticide.
(Keasbey v. B. C. Works, 142 N. Y. 473 ; Burnett v. Phalon,
3 Keyes, 594 ; Waterman v. Shipman, 130 N. Y. 310 ; Sel-
chow v. Baker, 93 N. Y. 65.) The word " Roachsalt " as used
by the defendant is an imitation of plaintiff's trade mark
"Roachsault." (Keasbey v. B. C. Works, 142 N. Y. 474;
Waterman v. Shipman, 130 N. Y. 310.) Defendant's U6e of
the word " Roachsalt " is with intent to defraud the plaintiff
and deceive the public, and such is the result. ( Vulcan v.
1903.] Barrett Chemical Co. v. Stern. 29
N. Y. Rep.] Opinion of the Court, per O'Brien, J.
Meyer, 139 N. Y. 367; Mfg. Co. v. Trainor, 101 U. 8. 51 ;
Fairbanks Co. v. Luckel, 102 Fed. Rep. 327 ; Fairbanks Co.
v. Bell, 77 Fed. Kep. 869 ; S. W. L. Co. v. Cary, 25 Fed. Rep.
125 ; Von Munn v. Frash, 56 Fed. Rep. 830 ; Waterman v.
Shipman, 130 N. Y. 311 ; Lever v. Goodwin, L. R. [35 Ch.
Div.] 1 ; Selehow v. Baker, 93 N. Y. 65 ; A. M. Co. v. Spear,
2 Sandf. 608.) Defendant is guilty of unfair competition.
(Fuller v. Ruff, 43 U. S. C. C. A. 454 ; M. B. Co. v. C. dk M.
B. Co., L. R. [App. Cas. 1899] 83 ; Carlsbad v. Kutnow, 71
Fed. Rep. 167; A. W. W. Co. v. U.S. W. Co., 173 Mass. 85 ;
Block v. Standard, 95 Fed. Rep. 978 ; Koehler v. Sanders,
122 N. Y. 74.)
O'Brien, J. The plaintiff is the assignee of what is claimed
to be a trade mark, or business label, which had been adopted
by another company some time before the assignment, and
used to advertise a preparation known as " Roachsault," for
destroying roaches and other insects. The defendant manu-
factures and sells an article to be used for the same purpose
with what is alleged to be a trade mark and label which
describes the article as " Roach salt." The plaintiff has con-
densed into one word the description of the article, with a
peculiar spelling of salt, while the defendant uses two words
with the ordinary and correct spelling.
The plaintiff contends that the use by the defendant of the
words and label amounts to a trespass or infringement of his
trade mark, and in this contention he has been sustained by
the courts below, and the defendant has been enjoined by the
judgment from using the word in his business. The com-
plaint avers the use by the defendant of a label sought to be
enjoined in which the most prominent feature displayed is that
of a large roach or insect, with the words " Stern's Insectago "
upon the body of the insect, with other words descriptive of
the article and what it does in the way of destroying insect
life. The most prominent words upon the label are, " War-
ranted Chemical Roach Salt," and the last word contains the
only possible similarity between the two labels. In all other
30 Barrett Chemical Co. v. Stern. [Oct.,
Opinion of the Court, per O'Brien, J. [Vol. 176.
respects they are entirely different. The defendant's label
differs in size, color, workmanship and descriptive words from
that of the plaintiff, and any one intending to purchase the
plaintiff's goods could not be misled by the defendant's label.
It is not claimed or averred in the complaint that the public
have been deceived by the use of the word by the defendant,
or that there was any such intent or purpose on his part to
deceive.
The question, therefore, is whether the plaintiff has such
an exclusive proprietary right to the use of a common English
word, or a combination of such words, as to entitle him to
debar all others from the use of the same in the. absence of
fraud or intent to deceive. The word " Roach " can be used
as descriptive of the common insect whose life is sought to be
destroyed by the use of the article, and so the word " salt "
may be used since it is a word in common use to describe
chemical preparations and an article for the preparation of
food. The two words may be united and used as one word to
describe a salt to be used for the purpose of destroying
roaches. Where a common word is adopted or placed upon
a commercial article for the purpose of identifying its class,
grade, style or quality, or for any purpose other than a refer-
ence to or indication of its ownership, it cannot be sustained
as a valid trade mark. Words of this character correctly
describing the purpose to which the article is to be put can-
not be exclusively used as trade marks. {Columbia Mill Co.
v. Alcorn, 150 IT. S. 460 ; Cooke & Cobb Co. v. Miller, 169
N. Y. 475.) The office of a trade mark is to point out dis-
tinctively the origin or ownership of the article to which it
is affixed, and no sign or form of words can be appropriated
as a valid trade mark which, from the fact conveyed by its
primary meaning, others may employ with. equal truth, and
with equal right, for the same purpose. {Elgin National
Watch Company v. Illinois Watch Case Company, 179 U.
S. 665.) The sole question in the case is whether the plaintiff
has a technical trade mark that has been invaded by the act
df the defendant. Both parties are engaged in the same
1903.] Loomis v. City of Little Falls. 31
N. Y. Rep.] Statement of case.
business and both have made use of a common word to
describe the character, quality and use of an article for
destroying insect life. The fact that the plaintiff made use
of the word before the defendant did not give him the exclu-
sive right to it since it was merely descriptive of the article.
There is no allegation or finding that any fraud was intended
or committed, or that the defendant by the use of the word
.palmed off his goods to the public as the goods of the plain-
1 tiff. The case in its legal aspect is practically the same as if
each party had labeled his goods " Roach Poison " instead of
" Roach Salt." They are all common descriptive words indi-
cating to the purchaser of the article that it was a powder or
preparation for destroying roaches or other insects, and when
the two labels are compared with respect to size, color, char-
acter and advertising caption, descriptive of the thing to
which it is attached, they are so dissimilar that it is scarcely
possible that any observer possessing reasonable intelligence
who wanted to procure the plaintiff's goods would be likely
to be deceived or mistake the defendant's article for that of
the plaintiff's.
The judgment should be reversed and a new trial granted,
costs to abide the event.
Parker, Ch. J., Bartlett, "Vann, Ccllen and Werner,
J J., concur; Martin, J., absent.
Judgment reversed, etc.
Watts T. Loomis, Appellant, v. The City of Little Falls
et al., Respondents.
Little Falls (City op) — Validity op Provisions of Charter
Prohibiting Maintenance op Actions to Set Abide or Annul
Assessments for Local Improvements Unless Commenced within
Prescribed Time and in Compliance with Prescribed Conditions.
The legislature having power to absolutely prohibit an action to set
aside, cancel or annul any assessment made for a local improvement,
such power necessarily includes the power to prohibit the commencement
of such an action unless specified conditions are complied with; it, there-
fore, had the power to enact the provisions of the charter of the city of
32 Loomis v. City of Littlk Falls. [Oct.,
Statement of case. [Vol. 176.
Little Falls (L. 1898, ch. 199, § 83, as amd. by L. 1899, ch. 289), providing
that no such action shall be maintained by any person unless ''commenced
within thirty days after the delivery of the assessment roll and warrant
for such local improvement to the city treasurer and notice by him in the
official newspapers of the city of the receipt thereof, and unless within
said thirty days an injunction shall have been procured by such person
from a court of competent jurisdiction restraining the common council
from issuing the assessment bonds hereinafter provided to be issued for
such assessment," and such provision is valid and is a bar to any action
not commenced within the time, and in compliance with the conditions,
therein prescribed.
Loomis v. City of Little Falls, 66 App. Div. 299, affirmed.
(Argued June 22, 1908; decided October 6, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
November 21, 1901, reversing a judgment in favor of plaintiff
entered upon the report of a referee and granting a new trial.
The nature of the action and the facts, so far as material,
are stated in the opinion.
A. M. Mills for appellant. Plaintiff is not within the
scope of the limitation prescribed by section 83 of the city
charter. The action is one to remove a cloud on title and
the setting aside, canceling or annulling of the assessment
which is sought is only to the extent that it forms a lien and
cloud upon the title. (Scott v. Onderd&nk, 14 N. Y. 9 ;
Breman v. City of Buffalo, 13 App. Div. 453 ; Dief en-
thaler v. City of Rochester, 111 N. Y. 331 ; Trimmer v.
City of Rochester, 45 N. Y. S. R. 307 ; Smith v. Reid, 134
N.Y. 568; Parmenter v. State, 135 N.Y.I 54; Rochford
v. Knight, 11 N. Y. 308.)
George J. O* Connor for respondents. This action was not
commeuced within thirty days after the delivery of the assess-
ment rolls and warrant to the city treasurer and notice by him
in the official papers of the receipt thereof, as required by sec-
tion 83 of the city charter. (L. 1899, ch. 289, § 83.) The
legislature had power to enact this statute and it was a valid
exercise of their power. {Matter of Bridgeford, 65 Hun,
1903.] Loomis v. City ok Little Falls. 33
N. Y. Rep.] Opinion of the Court, per Parker, Ch. J.
227 ; Astor v. New York, 62 N. Y. 580 ; Conde v. City of
Schenectady >, 164 N. Y. 258 ; Ensign v. Barse, 107 N. Y. 329.)
Parker, Ch. J. The determination of the Appellate Divi-
sion must be affirmed because this action was not commenced
within the period provided by the city charter.
The complaint alleges in detail the omission of the local
authorities to comply with certain requirements of the city
charter in proceedings taken to build certain sewers and grade
a portion of a street, the expense of which was assessed
upon property owners benefited, which it was alleged ren-
dered the assessment void ; and the relief demanded in the
complaint was
I. That all of the said taxes and assessments mentioned
and described in the foregoing complaint be vacated and set
aside.
II. That the defendants, their officers, agents, subordinates
and employees, be enjoined and restrained from in any
manner collecting or attempting to enforce the collection or
payment of said taxes and assessments.
III. For such other or further judgment or relief that may
be just and proper.
IV. For the costs of this action.
Section 83 of the city charter, as amended by chapter 199,
Laws of 1898, and by chapter 289, Laws of 1899, provides in
part as follows : " No action or proceeding to set aside, cancel
or annul any assessment made for local improvement under any
of the provisions of this act shall be maintained hy any person
unless such action or proceeding shall have been commenced
within thirty days after the delivery of the assessment roll
and warrant for such local improvement, to the city treasurer
and notice by him in the official newspapers of the city of the
receipt thereof, and unless within said thirty days an injunc-
tion shall have been procured by such person from a court of
competent jurisdiction restraining the common council from
issuing the assessment bonds hereinbefore provided to be
issued for such assessment."
8
34 Loomis v. City of Little Falls. [Oct.,
Opinion of the Court, per Parker, Ch. J. [Vol. 176.
This action was commenced March 29, 1900, and more than
30 days after the delivery of the assessment roll and warrant
for such local improvement to the city treasurer and notice by
him in the official newspapers of the receipt thereof for the
roll and warrant were delivered to him December 26, 1899,
and notice of receipt was given by him as required by the
charter January 4, 1900.
It is true, as the learned counsel for the plaintiff contends,
that it is an acknowledged branch of equity jurisdiction to
remove clouds from the title to real property, but the legisla-
ture has the power to deprive parties of that particular remedy.
It may not deprive them of every remedy, but so long as an
adequate remedy is afforded to a party injured the legislature
acts within its authority when it deprives the courts of power
to give relief in certain forms of actions.
In Zennon v. Mayor, etc., of N. T. (55 N*. Y. 361) the
original assessment was invalid, but the court held that the
assessment could not be vacated or canceled because section 7
of the act of 1872 provided that no assessment for local
improvements " shall be vacated or set aside for omission," etc.,
including the omission which the court said invalidated the
original assessment. The court said, Judge Rapallo writing :
" It was competent for the legislature to deprive the courts of
the power to give this relief, and the parties of the benefit of
this form of remedy. * * * If the assessment in ques-
tion has not been effectually validated, the plaintiffs may resist
its collection, or the title of any purchaser who may claim by
virtue of a sale had under it. Their constitutional rights will
then come directly in question. But no such right is violated
by precluding them from taking the initiative to remove the
apparent lien upon their property."
In Mayer v. Mayor, etc., of JST. Y. (101 N. T. 285) the
court considered section 897 of the Consolidation Act, which
forbade a suit in equity to vacate any assessment in the city,
or remove a cloud on title, and it was held that the plaintiff
could not have the specific relief which he sought, because
denied to him by the statute.
1903.] Loomis v. City ok Little Falls. 35
N. Y. Rep.] Opinion of the Court, per Parker, Ch. J.
To the same effect is Matter of Bridgford (65 Hun, 227),
where the court in its opinion cites and comments upon a
number of cases.
It is, therefore, settled by authority that it was within the
power of the legislature to have provided by section 83 that
no action should be brought to cancel, annul or set aside any
assessments made for land improvements. But it did not go
so far, and instead limited the bringing of such an action to a
period of 30 days after the delivery of the assessment roll
and warrant to the city treasurer, and notice by him in the
official newspapers of the city of receipt thereof, and con-
ditioned further that within such 30 days he procure an
injunction restraining the common council from issuing the
assessment bonds.
The reason for requiring the commencement of the action
and the granting of an injunction is apparent. The fact that
no action has been brought when such a statute exists assures
the would-be purchaser of the bonds that he is not in danger
of being subjected to litigation in the event of purchase, and
hence the bonds are likely to sell at a higher price than when
there is some uncertainty about it.
But whether the reasons be adequate or not the power of
the legislature to absolutely prohibit the bringing of such an
action — which, as we have seen, is established — necessarily
includes the power to prohibit the commencement of such an
action unless specified conditions be complied with.
The order should be affirmed, and judgment absolute for
defendant rendered on the stipulation, with costs.
O'Brien, Babtlett, Vann, Cullen and Werner, JJ.,
concur ; Martin, J., absent.
Order affirmed, etc.
3G JROCHESTKK & L. 0. W. Co. V. ClTY OF ROCHESTER. [Oct.,
Statement of case. [Vol. 176.
Rochester and Lake Ontario Water Company, Respondent,
v. The City of Rochester, Appellant.
1. Water Company Incorporated under Transportation Cor-
porations Law (L. 1890, Ch. 566, as Amd. by L. 1892, Ch. 617) for the
Purpose of Supplying Water to Towns and Villages Adjacent to
a- City — When It May Lay Its Water Mains and Pipes through the
City — When Entitled to Injunction Restraining thb City from
Preventing the Laying of Water Pipes. Where a water works com-
pany, duly incorporated under the provisions of the Transportation Cor-
porations Act (L. 1890, ch. 566, as amd. by L. 1892, ch. 617), for the
purpose of supplying water to certain villages and towns lying upon
opposite sides of a city, has paid the organization charges imposed by the
statute and has located and procured a right of way through the towns
lying on the westerly side of the city, as required by the statute, and has
obtained by a contract with a railroad company the right to lay its water
mains upon the railroad's right of way through the city and the town on
the easterly side of the city to villages upon the line of the railroad, and
has also entered into a contract with another corporation to construct its
water plant and lay its water mains and pipes, and made agreements to
supply water to a number of manufacturing establishments in the towns,
outside of the city, and to supply the railroad company with the water
that it requires in the city and at its stations along the route of the
water company, the franchise rights of the water company have become
vested thereby, and the company has the right and power, under section
82 of the statute, to lay its water mains along the route which it has
adopted and located upon the railroad's right of way through the city,
without the consent or permission of the authorities of the city, and is
entitled to an injunction restraining the city, its officers, agents and serv-
ants, from interfering with or preventing it from laying its water pipes or
mains across the streets of the city intersected by the railroad's right of
way.
2. When Ordinances Adopted under Provisions of the Charter
of the City Have no Application to tiie Laying of Water Mains
through the City — When Superintendent of Water Works of
City May Not Interfere with Water Pipes and Mains Passing
through the City — Effect of Statutes Enacted after Water
Company's Rights Have Been Acquired. Ordinances adopted by the
common council of a city, after the passage of the Transportation Corpo.
rations Law, for the purpose of regulating the opening of street surfaces
for the laying of gas and water pipes and the making of sewer connec-
tions, although authorized by the charter of the city, have no application
to and cannot regulate or prohibit the laying of water mains through the
1903.] Rochester & L. O. W. Co. v. City of Rochester. 37
N. Y. Rep ] Statement of case.
city by a water company organized under the statute in question for the
purpose of supplying water to adjaceut towns and villages, since the
legislature could not have intended to vest in the common council
the right to repeal or amend, by ordinance, a general statute of the state;
neither do the provisions of the charter of cities of the second class, (L.
1808, ch. 182) under which, in connection with special statutes not inconsist-
ent therewith, the city, in this case, is now acting and by which the commis-
sioner of public works is empowered to appoint a superintendent of water
works to see that the city is supplied with wholesome water for public and
private use, give such superintendent any power to prohibit the laying of
water pipes under the general laws or control the water of a corporation
organized under the Transportation Corporations Law so long as it is only
passing through the city in the mains of the company for use elsewhere;
nor can the vested rights acquired by the company in pursuance of its
corporate purposes be affected by subsequent statutes enacted for the pur-
pose of preventing the company from laying its pipes within the territory
of the city.
3. When Water Works Company Not Required to Go Around
City with Its Water Mains and Pipes. Although the water company
could have located its line around the city by going a longer distance
through a town not named in its certificate of incorporation, it need not
do so where such town does not directly intervene between the towns to
be supplied with water and named in such certificate, or furnish the
direct, natural and feasible route between the same.
4. Possibility that Water Company May Become Competitor op
City in Supplying Water to Consumers Will Not Prevent Com-
pany from Laying Water Mains and Pipes through the City.
Notwithstanding the fact that such water company may become a com-
petitor of the city which owns and operates a municipal water plant
which supplies water to its inhabitants for domestic and manufacturing
purposes, and has for many years supplied water to the railroad company
upon whose right of way the water company has located its route through
the city and with which it has contracted to furnish water at a lower rate
than that at which the city has furnished it, such fact does not affect the
statutory right of the water company to run its mains through the city
in order to comply with the purposes of its grant; when the company
attempts to supply water to the inhabitants of the city within its terri-
torial limits, the power to do so may then be questioned by the munici-
pality, and the courts may then be called upon to determine the extent of
its powers in that regard.
5. When City May Not Attack Validity of Water Company's
Right of Way through the City upon Lands of Railroad Com-
pany. Whether the water company has obtained from the railroad com-
pany a valid right of way along its lands is a question that cannot be
raised by the city so long as the railroad company does not question or
oppose such right.
38 ROCHESTER & L. O. W. Co. V. ClTY OF R0CHE8TER. [Oct.,
Statement of case. [Vol. 176.
6. Local Authorities Should Be Given Reasonable Control in
Such Cases as to the Streets to Be Used, and the Place and Man-
ner in Which the Pipes Should Be Laid. While the justice of the
provision which permits the laying of water pipes through an adjoining
municipality, and thus preventing such municipality from depriving its
neighbors from receiving a supply of water, where such municipality
happens to intervene between the source of supply and the place of dis-
tribution, is fully recognized, it is suggested that the legislature might
properly have placed some restriction upon the use of the streets ini cities
and possibly in villages that should be made by water companies; that
the city or village authorities should be given some voice as to the streets
that should be used, and the place and manner in which the pipes should
be laid therein; and that it should not be left entirely to the judgment
and discretion of the officers of the water company to place its pipes
wherever they please, without regard to the wishes or reasons of the offi-
cers of the city who may desire to have them placed elsewhere.
Rocliester <fe Lake Ontario Water Co. v. City of Rochester, 84 App. Div.
71, affirmed.
»
(Argued June 12, 1908; decided October 6, 1908.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the fourth judicial department, entered May
27, 1903, affirming a judgment in favor of plaintiff entered upon
a decision of the court on trial at Special Term.
The nature of the action and the facts, so far as material,
are stated in the opinion.
William A. Sutherland and John Van Voorhis for appel-
lant. Plaintiffs charter does not permit it to do any business
in the city of Rochester. (Jemison v. C. S. Bank, 122 N. Y.
135 ; People ex rel. v. Campbell, 144 N. Y. 166 ; Pearce v.
M. c& I. R. i?. Co., 62 N. Y. 441 ; Leslie v. Lorillard, 110
N. Y. 519 ; Kent v. Q. M. Co., 78 K Y. 159 ; ZanesvUle v.
G. L. Co., 47 Ohio St. 1.) The plaintiff was not given any
right to cross any of the streets of Rochester without the per-
mission of the local authorities. (Tovmsend v. Little, 109
U. S. 504 ; Lewis v. City of Syracuse, 13 App. Div. 587 ;
Matter of M. IT. Bank, 153 N". Y. 199.) The two special
statutes of 1903 effectually bar the plaintiff from the streets
of Rochester. {People ex rel. v. Spicer, 99 N. Y. 225;
1903.] Rochester & L. O. "W. Co. v. City of Rochester. 39
N. Y. Rep.] Points of counsel.
Wood v. Wellington, 30 N. Y. 218.) The plaintiff had
obtained no vested rights in any streets in the city of Rochester.
(77. R. T. Co. v. W. T. & R. Co., 135 N. Y. 393 ; People ex
rel. v. Dolan, 126 N. Y. 166 ; Munn v. Illinois, 94 U. S.
113 ; City of New York v. Herdje, 68 App. Div. 370; Buel
v. McFadden, 44 C. C. A. 494.) The plaintiff is not aided in
its attempt to invade the streets of Rochester by the claim
that it may cost more money to lay its water mains around
Rochester than through Rochester. (Z. V. R. R. Co. v.
Adams, 78 App. Div. 427 ; Buffalo v. Dudley, 14 N. Y.
336.) The charter of the city of Rochester was intended by
the legislature to confer, and did confer, upon the city of
Rochester the complete control of the streets of the city.
That power has not been taken from it by the Transportation
Corporations Law. (L. 1899, cli. 481, § 39 ; Vil. of Carth-
age v. Frederick, 122 K Y. 268 ; Walrath v. Abbott, 85
Hun, 181 ; Cronin v. People, 82 N. Y. 318 ; People ex rel. v.
Pratt, 129 N.Y. 68 ; City of Rochester v. West, 164 N. Y. 513 ;
A. R. T. Co. v. Hess, 125 N. Y. 641 ; Barhitev. Home Tel.
Co., 50 App. Div. 25 ; City of Rochester v. B. T. Co., 52
App. Div. 6 ; Vil. of Bolivar v. B. W. Co., 62 App. Div. 484.)
If section 82 of the Transportation Corporations Law can be
construed so as to permit the plaintiff to lay its pipes in the
streets of Rochester without the consent of the common coun-
cil, and the ordinance referred to is not potential to prohibit
the laying of such pipes, then the act of March 19, 1903,
settles the question. (People ex rel. v. Butler, 147 N. Y. 164 ;
Smith v. People, 47 N. Y. 330 ; Riggs v. Palmer, 115 N. Y_
506 ; JV. T. & L. I. B. Co. v. Smith, 148 N. Y. 540 ; Hearst
v. SJvea, 156 K Y. 169 ; Hickman v. Pinckney, 81 K Y.
211 ; People ex rel. v. G. & S. T. Co., 98 N. Y. 67 ; People
ex rel. v. Superior Court of Buffalo, 30 N. Y. S. R. 704 ;
Mongeon v. People, 2 T. & C. 128 ; S. P. R. Co. v. Russell,
7 N. Y. S. R. 595.) The water company secured no right to
furnish water in the city by virtue of the alleged grant from
the New York Central railroad. (A. K. R. R. Co. v.
BrowneU, 24 N. Y. 345 ; B. T. R. R. Co. v. H. V. R. R.
40 Rochester & L. O. W. Co. v. City of Rochester. [Oct.,
Points of counsel. [Vol. 176.
Co., 76 App. Div. 184 ; Quacktnbush v. G. Ins. Co., 77 App.
Div. 168.) The Transportation Corporations Law has not
taken away from the city of Rochester its police power.
(Jones v. Foster, 43 App. Div. 35 ; Village of Cartltage v.
Frederick, 122 N. Y. 268 ; People v. Squiers, 107 N. Y. 606 ;
W. U. T. Co. v. Mayor, etc., 3 L. R. A. 453 ; W. U. T. Co.
v. Atly.-Gen., 125 U. S. 548 ; Slate of Louisiana v. Schlemmer,
10 L. R. A. 135 ; State v. Parish of Orleans, 39 La. Ann.
138 ; Stone v. Mississippi, 101 U. S. 817; Stein v. Stape, 27
La. 123 ; People v. G. M. L. Ins. Co., 91 N. Y. 174.) There
is an express prohibition in the Transportation Law itself
against any corporation organized under that law laying pipe
lines through cities without the consent of the common coun-
cil. {Crocker v. Whitney, 71 N. Y. 161 ; People v. U. Ins.
Co., 15 Johns. 383.)
Albert 11. Harris for respondent. The plaintiff has the
right to lay its water mains through the city of Rochester on
the route which it has adopted and secured without asking
the defendant's permission. (Thomp. on Highways, 24;
Dygert v. Schpnck, 23 Wend. 446 ; 3 Kent's Comm. 557 ; Van
Brunt v. Town of Flatbush, 128 N. Y. 50; Eels v. A. T.,
Co., 143 N. Y. 133 ; Palmer v. L. F. Co., 158 N. Y. 231 ;
People ex rel. v. Priest, 75 App. Div. 131 ; Town of Clay
v. Hart, 25 Misc. Rep. 114; Starr v. Railroad, 4 Zab.
572 ; Jersey City v. Hudson, 2 Beas. 420 ; Perley v. Chand-
ler, 6 Mass. 492; Allen v. Boston, 159 Mass. 324.) The
plaintiff's rights are not affected by the amendments to section
157 of the charter of the city of Rochester. (S. li. T. Co. v.
Mayor, etc., 128 N. Y. 510; Super, v. Brogden, 112 U. S.
261; Robinson v. Goners, 138 N. Y. 425; Dartmouth Col-
lege v. Woodward, 4 Wheat. 519 ; People v. O'Brien, 111
N. Y. 1 ; Indianapolis v. C G. T. Co., 140 Ind. 107 ; Wheat v.
Alexandria, 88 Va. 742 ; People ex rel. v. Deehan, 153 N. Y.
528 ; W. U. T. Co. v. City of Syracuse, 24 Misc. Rep. 338 ;
Milhau v. Sharp, 27 N. Y. 611 ; S. R. T. Co. v. 3fayor,etc.
128 N. Y.510; R. II. cfe L. R. R. Co.x.N. Y.,L.F<&W.
1903.] Rochester & L. O. "W. Co. v. City of Rochester. 41
N. Y. Rep.] Opinion of the Court, per Haight, J.
R. R. Co., 110 IS. Y. 128.) The amendments should be given
prospective effect, and only against those not having existing
rights. {2Tew York cfe Oswego R. R. Co. v. Van Horn, 57
N. T. 473.) The grant of an easement from the New York
Central and Hudson River Railroad Company to the plaintiff
was valid. (G. T. R. R. Co. v. Richardson, 91 U. S. 454;
Matter of N. Y. C. R. R. Co. v. M. G. L. Co., 63 N. Y. 326 i
Guerney v. M. E. Co., 30 L. R. A. 534 ; Railroad Company
v. Waltern, 17 111. App. 582; W. U. T. Co. v. Rich, 19
Kans. 517; Pierce v. Railroad, 141 Mass. 481; Lewis on
Emineut Domain [2d ed.], § 584 ; Roby v. JST. Y. C. <& R.
R. R. R. Co., 142 K Y. 176.)
Haight, J. This action was brought to restrain the city
of Rochester, its officers, agents and servants, from interfering
with, or preventing the plaintiff from, laying its water pipes
or mains across certain streets of the city.
The plaintiff is a domestic corporation organized under the
Transportation Corporations Law, chapter 566, Laws of 1890,
as amended by chapter 617, Laws of 1892, for the purpose of
supplying water to the villages of Brighton and Fairport and
the towns of Greece, Gates and Brighton, in the county of
Monroe. The trustees of the villages and the officers of the
towns have, under due form of law, executed in writing
permits, authorizing the formation of the plaintiff as a
corporation, for the purpose of supplying their respective
villages and towns with water, which were duly acknowl-
edged and annexed to the certificate of incorporation and
filed therewith. The plaintiff, after perfecting its organiza-
tion and paying the charge therefor imposed by the statute,
determined to take its supply of water from Lake Ontario at
a point near Rigney's Bluff westerly from the point at which
the Genesee river empties into the lake, and to lay its pipes
therefrom southerly through the towns of Greece and Gates
to the city of Rochester, and thence through the city to
the town of Brighton, and so on easterly to the village of
Fairport. It caused a map to be made of the lands intended
42 Rochester & L. O. W. Co. v. City of Rochester. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 178.
to be taken or entered upon in the route which it had adopted,
duly signed by the officers of the company and filed in the
office of the clerk of the county, as required by section 83 of the
Transportation Corporations Law. It then procured its right
of way through the towns of Greece and Gates to the city of
Rochester, and entered into a contract with the New York
Central & Hudson River Railroad Company by which it was
given the right to lay its mains upon the company's right of
way, through the city of Rochester and the town of Brighton
to the village of Fairport. It entered into a contract with
another corporation to construct its plant and lay its pipes, and
has made agreements to supply water to a number of manufac-
turing.establishments, including railroad repair shops, in the
towns outside of the city of Rochester, and to supply the New
York Central & Hudson River Railroad Company with the
water that it required in the city of Rochester, and at its sta-
tions east between the city and Fairport. After which it com-
menced the laying of its pipes and undertook to dig trenches
therefor across one or more of the streets of the city upon the
right of way of the railroad company, and was prevented from
so doing by the officers of the city, acting through its police
department, and thereupon this action was brought to restrain
such interference.
The trial court has found as a fact that there was a legiti-
mate demand for water in the towns and villages specified ;
and that it was necessary for the plaintiff, in order to carry
out the purposes of its incorporation and to fulfill the contracts
which it had made and assumed, to lay its water mains along
the route which it had adopted through the city of Rochester ;
and that it had acquired an easement to cross the intersecting
streets. At the request of the defendant the court found,
" That it is a physical possibility to carry water from Lake
Ontario to the towns of Greece and Gates on the south and
west of Rochester, and to the town of Brighton and the vil-
lages of Brighton and Fairport on the east of Rochester, with-
out laying any pipes within any portion of the territory of the
city of Rochester, but that to supply the said territory east of
1903.] Rochester & L. O. W. Co. v. City of Rochester. 43
N. Y. Rep.J Opinion of the Court, per Haight. J.
Rochester would require pipes to be laid through the town of
Irondequoit, in which the plaintiff has neither sought nor
obtained any permit from the local authorities, and has acquired
no right of way, and the cost of such construction would be
materially greater." The town of Greece lies between the
lake and the city of Rochester. The town of Gates is west
of the city, and that of Brighton is east of the city. It, there-
fore, is necessary in laying a main from the town of Gates to
the town of Brighton and to the villages on the east of the
city, to pass through the city of Rochester, or to go around
the city through the town of Irondequoit which would involve
the laying of the pipes for a much greater distance, and con-
sequently cause a considerable increase in the cost of the
construction.
Section eighty-two of the statute under which the plaintiff
was incorporated provides as follows : " Every such corpora-
tion shall have the following additional powers :
" 1. To lay and maintain their pipes and hydrants for deliv-
ering and distributing water in any street, highway or public
place of any city, town or village in which it has obtained the
permit required by section eighty of this article.
" 2. To lay their water pipes in any streets or avenues or
public places of an adjoining city, town or village, to the city,
town or village where such permit has been obtained.
"3. To cause such examinations and surveys for its pro-
posed water works to be made as may be necessary to deter-
mine the proper location thereof, and for such purpose by its
officers, agents or servants to enter upon any lands or waters
in the city, town or village where organized, or, in any adjoin-
ing city, town or village for the purpose of making sucli
examinations or surveys, subject to liability for all damages
done."
The first subdivision of this statute gives to water compa-
nies the right to lay and maintain their pipes and hydrants in
any street, highway or public place of the city, town or vil-
lage in which it has obtained a permit to supply its inhabitants
with water. The second subdivision gives a like power to the
44 Rochester & L. O. W. Co. v. City of Rochester. [Oct.,
Opinion of the Court, per Haight. J. [Vol. 176.
company as to its pipes in an adjoining city, town or village.
It is upon this latter subdivision of the statute that the plain-
tiff bases its claim of right to run its pipes through the city of
Rochester. The city, as we have seen, adjoins the town of
Gates on the west and the town of Brighton on the east. It
owns and operates a municipal water plant, by which it sup-
plies itself and its inhabitants with water. It also has for
many years supplied the New York Central & Hudson River
Railroad Company with water within the city at an annual
rental of from $18,000 to $20,000 per year. The city, there-
fore, does not require water from the plaintiff corporation, and
objects to its occupying any portion of the streets with its
pipes. The purpose of this provision of the statute is
manifest. The legislature did not propose that one munici-
pality, which happened to be more favorably situated, should
have the power to prevent another and adjoining munici-
pality from obtaining water, where it becomes necessary to
pass through the territory of such adjoining municipality to
reach the source of supply. This was settled in the case of
Village of Pelham Manor v. New Hochelle Water Company
(143 N. T. 532), in which case the court went to the extent of
holding that a water company had the right to lay its water
pipes in the streets of an adjoining town or village, whenever
it was necessary to effectnally and properly execute the pur-
pose for which it was created, even though the point in the
adjoining town where the pipes were laid did not intervene
between the source of supply and the place of distribution.
A vigorous assault has been made by the counsel for the
appellant upon the wisdom of this statute. While we have
no power to review the legislative discretion, it may not be
out of place to here make some suggestion with reference to
this particular provision. We fully recognize the justice of
the provision which permits the laying of water pipes through
an adjoining municipality, and thus preventing such munici-
pality from depriving its neighbors from receiving a supply
of water, where such municipality happens to intervene
between the source of supply and the place of distribution.
1903.] Rochester & L. O. W. Co. v. City of Rochester. 45
N. Y. Rep.] Opinion of the Court, per Haight, J.
Tliis power, as it was originally granted, was limited to towns
and villages, but under the provision of chapter 617 of the
Laws of 1892, the right to lay pipes through the streets,
avenues and public places, was extended to cities. This pro-
vision was adopted doubtless for the reason that it was found
that the compelling of a water company to lay its mains
around the territory of a city many miles in extent,'might
involve such expense as to operate as a practical prohibition
to the supplying of water to villages which happen to be
situated so that the city intervenes between them and the
source of water supply. We think, however, that the legis-
lature might properly have placed some restriction upon the
use of the streets in cities, and possibly in villages, that should
be made by water companies ; that the city or village author-
ities should be given some voice as to the streets that should
be used, and the place and manner in which the pipes should
be laid therein ; and that it should not be left entirely to the
judgment and discretion of the officers of the water company
to place its pipes wherever they please, without regard to the
wishes or reasons of the officers of the city who may desire to
have them placed elsewhere. There is, however, no com-
plaint with reference to the location of the company's line in
this case, provided it has the right to lay its pipes through
the city. The line selected upon the right of way of the New
York Central & Hudson River Railroad Company relieves
the city from having the pipes laid lengthwise through its
streets, for it only crosses the streets that are crossed by the
railroad tracks.
The trial court has awarded judgment to the effect that
the plaintiff has acquired the right to lay and maintain its
water mains through the city of Rochester upon the strip of
land owned by the New York Central & Hudson River
Railroad Company ; and that the city, its officers, agents and
servants, be enjoined from interfering with the plaintiff in
laying its water mains across the streets of the city. In
awarding such judgment the court has very properly imposed
certain conditions upon the plaintiff, regulating the manner
46 Rochester & L. O. W. Co. v. City of Rochester. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 176.
in which it should do its work ; providing for the guarding
of trenches ; the restoring of pavements and streets in which
trenches have been dug ; to save the city harmless from lia-
bility, and to give the commissioner of public works of the
city twenty-four hours' notice before commencing the work
of excavating in any of the streets. The representatives of
the city have not suggested that further restrictions should be
imposed, and, indeed, we do not understand them as com-
plaining of the judgment, except in so far as it holds that the
plaintiff has acquired the right to lay its pipes into or through
the territory of the city.
We are thus brought to a consideration of the defenses
interposed by the defendant. The city in its answer has set
out section forty of its charter, as finally amended by chapter
twenty-eight of the Laws of 1894, which gives the common
council of the city the power to enact ordinances for the fol-
lowing purposes: "To regulate and prevent the use and
encumbering of streets ; * * * to regulate the opening
of street surfaces and connections with sewers, and the laying
of gas, water pipes and mains and sewer connections." It
further alleges that on or about the 11th day of May, 1897,
the common council of the city duly enacted an ordinance
relating to streets, which contained the following : " Section 1.
No person shall injure any pavement, sidewalk, crosswalk or
sewer, nor dig any area, sewer, lateral sewer or other excava-
tion in any public street, nor remove any earth or stone there-
from, within the city of Rochester, without permission in
writing from the executive board, and under such conditions
as said board may impose, and the executive board may
order any sewer or excavation constructed contrary to the pro-
visions of this section to be filled up or altered at the expense
of the owner." Further provisions of the ordinances make a
violation punishable by a fine not exceeding $150, or to
imprisonment not exceeding one hundred and fifty days, or
to both such fine and imprisonment. The answer further
alleges that the city of Rochester is a city of the second class,
and that under section 483 of chapter 182 of the Laws of
1903.] KocHKSTKit & L. O. W. Co. t\ City of Rochester. 47
N. Y. Rep.] Opinion of the Court, per Haight, J.
189S, entitled " An act for the government of cities of the
second class," it is provided that " nothing contained in this
act should l>e construed to repeal any statute of the state or
ordinance of the city, * * * not inconsistent rath the
provisions of this act." It is also alleged that by section 109
of the latter act the commissioner of public works " has cog-
nizance, direction and control of the construction, alteration,
repair, care, paving, flagging, lighting and improving streets,
ways and sidewalks ; " that under section 142 of the act the
commissioner of public works has the jurisdiction of com-
missioners of highways in towns ; and under section 110 he is
required to appoint a superintendent of water works, to see
that the city lias an abundant supply of wholesome water for
public and private use.
To our minds the provision of the charter of the city of
Rochester, giving to the common council the power to enact
ordinances upon various subjects, does not affect the questions
involved in this case. The common council has enacted an
ordinance to regulate and prevent the use and incumbering of
streets. This undoubtedly has reference to the use and
incumbering of streets upon the surface, and not especially to
the use made of the soil underneath the street. That was
doubtless left to the other provision which regulates the open-
ing of street surfaces for the laying of gas and water pipes, and
the making of sewer connections. This ordinance was doubt-
less framed to regulate the laying of the water mains of the
city's plant and the connections to be made therewith by the
abutting owners on the streets. It is claimed that it had
reference to the water mains of water companies organized
under the statute to which we have called attention ; but the
ordinance was adopted May 11th, 1897, after the passage of
the Transportation Corporations Law. To give it the force
claimed would necessitate the holding that it was the intention
of the legislature to vest in the common council of the city of
Rochester the power by ordinance to repeal or amend a general
statute of the state. This certainly could not have been
intended, for the power delegated to enact ordinances has
48 Rochester & L. O. W. Co. v. City of Rochester. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 176.
always been limited to such as were not in conflict with exist-
ing laws ; so that if the ordinance is to be construed as a pro-
hibition against making any* excavations in a public street for
the purpose of laying water pipes by the plaintiff herein then
it is in conflict with the provisions of the general statute to
which we have referred, which expressly gives such powrer in
adjoining municipalities. As to the provisions of the charter
of cities of the second class, which continue in force statutes and
ordinances which are not inconsistent with its provisions, they
relate to those ordinances which are valid and are not in con-
flict with existing statutes. While the commissioner of public
works is given the power of commissioners of highways and
the power to appoint a superintendent of water works whose
duty it is to see that the city is supplied with wholesome
water for public and private use, we do not understand that it
gives him any power to prohibit the laying of pipes under gen-
eral laws or control over the water of the plaintiff corporation
so long as it is only passing through the city in the mains of
the company for use elsewhere. If an attempt is made to dis-
tribute the water within the city then the superintendent may
become interested in ascertaining whether it is pure and whole-
some or is contaminated.
The defendant has further alleged in its answer that by
chapter 59 of the Laws of 1903, section 157 of the city
charter was amended so as to substitute the commissioner of
public works for the executive board, and then by adding the
following : " No other person or corporation shall enter upon
or excavate any road, street, highway or public place in the
city of Rochester, for the purpose of laying down pipes for
the conveyance of water, without the permission of the com-
mon council." And this section has been again amended
since the decision in this case was made by chapter 553 of the
Laws of 1903, in which there was added the following :
" Section 1. Which body may deny any such application in
its discretion. No person or corporation shall furnish or dis-
tribute water within said city of Rochester from pipes, mains or
conduits except under a franchise granted by an ordinance
1903.] Rochester & L. O. W. Co. v. City op Rochester. 49
N. Y. Rep.] Opinion of the Court, per Haight, J.
s
passed by a three-fourths vote of all of the members of the com-
mon council, approved by the board of estimate and apportion-
ment and providing for a disposition of such franchise for an ade-
quate consideration for a period not exceeding twenty-five years
and upon such terms and conditions as said common council
may impose. Section 2. Any right, license or permission to
any person or corporation, other than the city of Rochester,
to enter upon and lay pipes for the conveyance of water in
the public streets and highways of the city of Rochester, or
to furnish and distribute water within said city, accruing,
accrued or acquired under and pursuant to any previous act
of the legislature, or part of such act, is hereby repealed and
revoked. Section 3. All acts and parts of acts inconsistent
with this act are hereby repealed." Section 157 of the city
charter had reference to the power of the executive board
over the extension of the water mains of the city, their repair
and maintenance. The duties of the executive board were
transferred to that of the commissioner of public works, and
he was, therefore, given the power which the board had pre-
viously possessed over the streets and the extension of the
water mains therein. The first amendment prevents any
other person or corporation from entering upon, excavating
or laying down pipes in the streets, without the permission of
the common council. It may be that manufacturing corpora-
tions and abutting owners upon streets who desire to have
connections made with the water mains of the city in the
future must obtain the permission of the common council to
open the streets and make connections with its city water
system ; and that the provisions of the amendment should be
construed as applying to the water works plant of the city,
and, therefore, not in conflict with the general law. But as
to the last amendment, made after the trial and decision of
this case, we think no such construction is permissible. It
was evidently intended to meet the circumstances of this case
and to prevent the plaintiff from laying its pipes within the
territory of the city. It remains, therefore, to be determined
whether this legislation can be given force and effect As we
4
50 Rochester & L. O. "W. Co. v. City of Rochester. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 176.
have seen, the plaintiff corporation had been perfected and it
had paid the state the taxes imposed therefor. It had caused
surveys to be made and a map filed, locating its route, and
had entered into a contract for the construction of its plant,
including the laying of its pipes. It had acquired its right
of way and had entered into contracts for the supplying of
water, in accordance with its charter. It had expended money
and incurred obligations. All this had taken place before
the legislation of 1903. The plaintiff, in incurring these
obligations and in making these expenditures, had the right
to rely upon the faith of the franchise which it had acquired,
under which it had the right to supply the localities with
water. We think these rights had become vested and were
property within the meaning of the Constitution, which pro-
hibits the deprivation of a person of property without due
process of law. {People v. O'Brien, 111 N. Y. 1.)
As we have seen, under the general statute, the right was
given to the water company to lay its pipes in the highway of
an adjoining city, town or village. No consent of the munici-
pal authority was required. While we have made sugges-
tions with reference to this legislation, we think that the
whole matter is subject to legislative control. The care, con-
trol and management of the highways at common law were
vested in the sovereign. In this state the sovereigu power is
with the people, as represented in their legislature. The
sovereign power over highways may be delegated to munici-
palities to such an extent as the legislature may deem advis-
able ; and when the grant by the government is made to a
municipality of a portion of its sovereign power, it is to be
deemed a sufficient consideration for an implied contract on
the part of the municipality to perform the duties which the
charter imposes, and the contract so made with the sovereign
power inures to the benefit of every individual interested in its
performance. {Conrad v. Trustee* of the Villa/je of Ithaca,
16 N. Y. 158.) The management and control of highways,
given by the state to cities and villages, is still subject to such
statutes as the legislature shall adopt with reference thereto.
1903.] Rochester <& L. O. W. Co. v. City of Rochester. 51
N. Y. Hep.] Opinion of the Court, per Haight, J.
And when, therefore, the legislature sees fit to sanction their
nse for the transportation of water for the benefit of the peo-
ple of a municipality, it is a public use which the legislature
has the power to authorize without the consent of the
municipality.
It is suggested that it was not necessary that the plaintiff
should run its line of pipe through the city of Rochester ;
that it could have located its line through and around the city
through the town of Irondequoit. We have not been favored
with a finding as to the amount of additional expense that
would be involved in the making of this circuit of the city,
and we consequently cannot determine as to whether it would
be so great as to render the undertaking financially impossible
and thus operate to deprive the villages named of an oppor-
tunity to procure water. We think a sufficient answer to this
suggestion lies in the fact that the town of Irondequoit does
not directly intervene between the towns named in the cer-
tificate of incorporation which seek the supply of water, or
furnish the direct, natural and feasible route between the same.
The remaining suggestion, coming from the city, is to the
effect that the plaintiff corporation may become a competitor
of the city. This grows out of the fact appearing in the
record that the city of Rochester owns and operates a munici-
pal water plant which supplies water to its inhabitants for
domestic and manufacturing purposes; that the plant cost
eleven millions of dollars, and that there are three millions of
dollars in municipal bonds outstanding ; that for many years
the New York Central & Hudson River Railroad Company
has been supplied with water within the city from the munici-
pal plant, it paying therefor from $18,000 to $20,000 per
ami am ; that the rate charged the company by the city has
been fourteen cents per thousand gallons ; and that the com-
pany has entered into a contract with the plaintiff corporation
to supply it with water at about one-half of that rate. This fact
doubtless furnishes the chief reason on the part of the city for
opposing the laying of the company's lines through the city
on the right of way it has obtained. We do not at this time
52 Rochester & L. O. W. Co. v. City of Rochester. [Oct.,
Dissenting opinion, per Bartlett, J. [Vol. 176.
deem it necessary to engage in any discussion of the merits of
municipal ownership, or to determine whether the establishing
of a municipal plant operates to give the city an exclusive
right to supply its inhabitants with water. Under the statute,
as we have seen, the company has the right to run its mains
through the city, in order to comply with the purposes of its
grant. When it attempts to supply water to the inhabitants
of the city within its territorial limits, its power to do so may
then be questioned by the municipality, and the courts may
then be called upon to determine the extent of its powers in
that regard.
The New York Central & Hudson River Railroad Com-
pany is not here opposing this judgment. The city of
Rochester is not interested in the question as to whether the
plaintiff has obtained from the railroad company a valid right
of way along the company's lands. It, therefore, is not in ja
position to call upon the courts to determine the validity of
such title.
The judgment should be affirmed, with costs.
Bartlett, J. (dissenting). In this action the plaintiff seeks
a permanent injunction against the defendant and is conse-
quently bound to show an entry into court with clean hands
and a clear right .to the relief demanded. The validity of
plaintiff's contracts with other corporations is involved, but
only for the purposes of this action, and the judgment which
may be entered will necessarily be limited in its operation to
the rights of parties before the court.
The plaintiff having set the court in motion cannot be
heard to complain if the issues involve a wider range than it
originally contemplated.
The plaintiff is a water works corporation, organized under
the Transportation Corporations Law in December, 1902,
naming in its certificate two villages and three towns in the
county of Monroe which it proposed to supply with water.
A portion of the territory named adjoins the defendant, the
city of Rochester, on the east and a portion adjoins it on the
1903.] Rochester & L. O. W. Co. v. City of Rochester. 53
N. Y. Rep.] Dissenting opinion, per Bartlett, J.
west. The plaintiff intends, according to its certificate, to
obtain its supply of water from Lake Ontario, some distance
west of the Genesee river, and to lay its mains southerly
parallel to the river to the west line of the city of Rochester,
thence through the city to the territory on the east.
The trial court found that the plaintiff, before the com-
mencement of this action, obtained from the state of New
York a franchise giving to it the right to lay and maintain
its water mains through the city of Rochester, upon the route
adopted by it, to the exercise and enjoyment of which the
consent of the city of Rochester is not required ; that there-
after the plaintiff undertook to lay its mains on the line of its
proposed route at two certain streets, but was prevented by
defendant exercising force to that end.
The court further finds that the New York Central & Hud-
son River railroad passes through the city of Rochester, and
that the company owns and occupies a continuous strip of
land through the city in an easterly and westerly direction,
upon which its tracks are laid ; that this strip of land is inter-
sected by several streets, some of which cross at grade and
some above or below grade ; that the land at all of the street
crossings is owned by the railroad company, subject to the
public user for street purposes.
It is further found that plaintiff acquired an easement in
the north six feet of said continuous strip of land, for the
purpose of laying and maintaining thereon its water mains,
by virtue of two written contracts with the New York Cen-
tral & Hudson River Railroad Company, by which it agreed
to furnish water to the railroad company in large quantities in
the city of Rochester and elsewhere, on its right of way, for a
term of years ; that a like contract to furnish water was made
by plaintiff with the Buffalo, Rochester & Pittsburg Rail-
way Company.
It is found that the city of Rochester owns and operates a
municipal water plant which supplies water to its inhabitants
for domestic and municipal purposes in large quantities ; that
the cost of this plant was about $11,000,000, of which
54 Rochester & L. O. W. Co. v. City of Rochester. [Oct.,
Dissenting opinion, per Bartlett, J. [Vol. 176.
$3,000,000 are represented by outstanding bonds. The New
York Central & Hudson River Railroad Company has been
supplied with water by the city of Rochester, paying therefor
from $18,000 to $20,000 per annum. The Buffalo, Rochester
& Pittsburg Railway Company has also paid the city of
Rochester a very considerable sum per annum for water.
The plaintiff contends that on the facts found it is, by virtue
of the statute and under its contracts with the Central &
Hudson, possessed of a legal franchise and route through the
city of Rochester on which to lay and maintain its mains. The
plaintiff admits that whenever the question is presented it will
insist that it can legally furnish water, in the city of Roches-
ter, to the railroad companies with which it has contracted
and to such adjoining owners as can be reached without lay-
ing its pipes along the streets.
The plaintiff and the courts below have sought to confine
the case to the one question of the legality of the route claimed
by plaintiff.
It will presently appear that other questions are necessarily
involved in passing upon the alleged legality of the route.
1. The first point arises under the provisions of plaintiff's
charter ; it is authorized to furnish water to two villages and
three towns. Its charter does not extend to the city of Roch-
ester, and it has no more right to sell, or furnish, water within the
corporate limits of that city than it has in the city of New York.
This point goes to the foundation of the action, for the
plaintiff cannot sell or furnish water even to the New York
Central & Hudson River Railroad Company within the
boundaries of the city of Rochester, and hence its contracts
with the said company are ultra vires and give it no franchise
or vested rights. The plaintiff's right to lay and maintain its
mains on the strip of land in question, as between it and the
Central & Hudson, rests on its covenant to supply the railroad
company with water.
2. While the Central & Hudson could lay water pipes on
its right of way to supply itself with water, for that would
be a purpose incidental to its charter, it could not sell water
1903.] Rochester & L. O. W. Co. v. City of Rochester. 55
N. Y. Rep.] Dissenting opinion, per Bartlett, J.
to others, for that would be foreign to its charter. Not hav-
ing that right itself, it could not confer it upon the plaintiff.
N It could not by contract enable the plaintiff to do something
which the railroad company had no right to do itself.
It is true that a railroad company, needing water for its
uses and purposes; may resort to condemnation proceedings
to obtain it (Railroad Law, § 7, subd. 4), but this power does
not affect the present situation.
in so far as plaintiff rests its claim for equitable relief on its
contracts, it asks the protection of a right by injunction that
does not exist in law. The contracts relied upon are two in
number. One Mingle entered into a contract with the Central
& Hudson to furnish it for a term of years with water, which
was assigned to plaintiff by Mingle, with the consent of the
Centra] & Hudson, the plaintiff assuming performance. Later,
the plaintiff entered into a contract with the Central & Hud-
son for its right of way, which was granted, subject to the
express condition that plaintiff should fully perform the con-
tract to furnish water, so assigned to it by Mingle.
3. The plaintiff further insists that its selected route through
the city of Rochester rests not only on its contracts with the
Central & Hudson, but on the provisions of the Transporta-
tion Corporations Law.
It, therefore, becomes necessary to consider this contention
in view of the provisions of various statutes, viz. : The Trans-
portation Corporations Law, as amended ; the charter of the
city of Rochester and its amendments ; the act for the gov-
ernment of cities of the second class, sometimes called the
White charter. (Laws 1898, chap. 182.)
The plaintiff contends that, notwithstanding its route is six
miles long and crosses twenty-nine streets in the city of
Rochester, it can lay its mains thereon and cross said streets
without interference from the local authorities. This con-
tention is based on section 82, subd. 2 of the Transportation
Corporations Law (Birdseye's R. S. [3d ed.] vol. 3, p. 3764),
which authorizes water works corporations "To lay their
water pipes in any streets or avenues or public places of an
56 Rochester & L. O. W. Co. v. City of Rochester. [Oct.,
Dissenting opinion, per Bartlktt, J. [Vol. 176.
adjoining city, town or village where such permit has been
obtained."
That is to say, where a corporation has received a permit
from a municipality to furnish it with water, it may, in order
to reach such municipality, lay its pipes in the streets of an
adjoining city, town or village which lies between the water
supply and the place to be furnished with water.
As the city of Rochester occupies this position as to certain
of the municipalities to be supplied with water by the plain-
tiff, it is argued that the latter can proceed to locate its route
and lay its mains without the permission or interference of
the local authorities of the city of Rochester.
While the statute does not declare, in terras, that the local
authorities are powerless to regulate or control the route
selected in such intervening municipality, the respondent, in
support of such a construction, places great reliance on the
case of Village of Pelham Manor v. New Rochelle Water
Company (143 N. Y. 532), decided in November, 1894.
Pelham and New Rochelle are adjoining villages. The
claim of the plaintiff was that the defendant had no power
to lay pipes in one of its highways without permission of the
municipal authorities. Judge O'Brien, writing for the court,
said : " What the defendant did was to use the road for about
five hundred feet in order to connect two of its mains, which
terminated in * dead ends,' near the boundary lines of the two
towns. * * * So long as the defendant was without
power to add to its revenues by furnishing water to the plain-
tiff, or any of its inhabitants, no great mischief is to be appre-
hended from any extensive use of the streets by the defend-
ant. But the legislature evidently anticipatated that a water
company in performance of its functions of supplying the
town and every part of it, which granted the permit, with
water, might, for some reason, find it necessary to cross the
boundary line of an adjoining town and use its highways, not
for the purpose of supplying that town, but for the purpose
of properly and effectively executing the purpose of its crea-
tion. Such necessity has been found in this case as matter
1903.] I\OCHE8TER & L. O. W. Co. V. ClTY OF ROCHESTER. 57
N. Y. Rep.] Dissenting opinion, per Bartlett, J,
of fact by the trial court, and hence the permission of the
municipal authorities who had charge and control of the
highways was not necessary."
This case was properly decided on its peculiar facts, as the
law 6tood in 1894, but since then section 81 has been amended,
and we have existing, by virtue of this amendment, the very
situation, the absence of which controlled the foregoing
decision, to wit, where the company claiming the right to
lay its pipes in the streets of an intervening town has the
power to add to its revenues by supplying it with water.
In 1896 (Laws of 1896, chap. 678) section 81 of the Trans-
portation Corporations Law was amended so as to read :
" § 81. Every such corporation shall supply tfie authorities
or any of the inhabitants of any city, town or village through
which the conduits or mains of such corporation may pass
* * * with pure and wholesome water at reasonable rates
and cost," etc.
It would be an unreasonable construction of this statute, so
amended as to compel the corporation passing through an
intervening municipality with its pipes to furnish pure water
to its authorities and inhabitants, to hold that it could select
its route through such municipality without consulting the
officers having charge of the streets.
While the right to pass through the streets of the interven-
ing municipality is conferred by this statute, a fair construc-
tion leads to the conclusion that the legislature intended that
its exercise is subject to the reasonable regulations and con-
trol of the local authorities, both as to route and manner of
conducting the work.
The court would not be justified in assuming that the legis-
lature intended to allow a water company, in passing through
an intervening town where it is compelled to supply water, if
required, to select its route as to streets in defiance of the
duly constituted authorities, but in the adjoining town, where
by permit it is to erect a water system, it is subject to such
restrictions as to route and interference with the public streets
as the local authorities may deem it proper to impose.
58 Rochester & L. O. W. Co. v. City of Rochester. [Oct.,
Dissenting opinion, per Bartlett, J. [Vol. 176.
It follows that the provisions of the Transportation Cor-
porations Law, as amended in 1896, do not authorize the
plaintiff, even if lawfully within the city limits, to cross the
twenty-nine streets in the city of Rochester without submit-
ting to the reasonable supervision and control of the local
authorities.
The finding of the trial court that the land at all of these
street crossings is owned by the railroad company, subject
only to the public use for the purposes of a street, does not
help plaintiff, as the local authorities have the power to pro-
tect and regulate this public use.
Furthermore, it is a question whether the Central & Hud-
son could grant an easement to the plaintiff to lay its pipes
over the entire strip of six miles, including the land involved
in street crossings.
In Albany Northern Railroad Co. v. Brownell (24 N. Y.
345, 349) the court said : " Upon this ray opinion is, that the
railroad companies under the general act do not acquire the
same unqualified title and right of disposition, to the real
estate taken for the road and paid for according to the act,
which individuals have in their lands. The statute declares
the effect of the proceedings which it authorizes to be that
the company shall be entitled to enter upon, take possession
of, and use the said land for the purposes of its incorporation^
during the continuance of its i corporate existence ; ' and it fur-
ther declares that the land it thus appropriates shall be deemed
to be acquired for public use."
It is not contended that the laying of plaintiff's mains over
the entire strip was necessary to furnish the railroad company
with water ; it is admitted a further object was to reach
municipalities on the east of defendant. A conveyance by the
railroad company with the latter object in view is clearly
ultra vires.
I have deemed it proper to construe the Transportation
Corporations Law as claimed to be applicable to this case,
although of the opinion that the charter of the city of Roch-
ester and its amendments, read in connection with the White
1903.] Rochester & L. O. W. Co. v. City of Rochester. 59
N. Y. Rep ] Dissenting opinion, per Bartlett. J.
charter, already cited, bar the entrance of plaintiff to the city
of Rochester.
We have here one of the large cities of the second class,
which has, at an expenditure of eleven millions of dollars,
created a water system adequate to supplying the municipality
and its inhabitants with pure and wholesome water for many
years to come.
The question is whether the statutes, under which the city
is exercising its governmental functions, permit it to found
and maintain a municipal water system in the interests of the
public safety and health free from outside competition or
interference.
This court has decided that this system of water works was
erected for the public benefit and is held for public purposes.
{City of Rochester v. Town of Rush, 80 N. Y. 302.)
This system of water works was authorized by Laws of 1872,
chapter 387, under which were created the original water com-
missioners of Rochester. The consolidated charter of Roch-
ester, as amended, transferred the control of the water system
to the executive board. The amendments of 1890 (Chap.
561, § 150) declare : " The executive board shall have control
of the water works of said city, and of the construction of all
extensions and additions, improvements and repairs of the
same, and of furnishing the water to citizens, and the care and
repair of said works, * * * and they may make such
rules and regulations and establish such rates for the use of
water as they may deem proper."
The act for^the government of cities of the second class
(White charter, Laws 1898, chap. 182) devolves the construc-
tion, maintenance, extension and repair of the city water
works upon the commissioner of public works (section
109), and it is also made, his duty (section 110), "when a
vacancy shall occur, to appoint a superintendent of water
works and to see that the city has an abundant supply
of wholesome water for public and private use ; to devise the
plans and sources of water supply ; to plan and supervise the
distribution of water through the city ; to protect it against
60 ROCHESTER & L. O. W. Co. V. ClTY OF ROCHESTER. [Oct.,
Dissenting opinion, per Bartlett, J. [Vol. 176.
contamination ; to prescribe rales and regulations for its use,
which, when ratified and approved by the common coun-
cil, shall have the same force and effect as an ordinance by the
common council enacted." The section goes on to give to the
commissioner most ample powers in detail.
We have here the legislative intention, clearly expressed,
that the city of Rochester is to have full and complete con-
trol of its system of water works even to devising the plans
and sources of supply, which may be necessary in every city
where the increase of population renders the existing supply
insufficient.
There is but one fair and workable construction to be given
these charters, and that is they make the municipal water
system exclusive and free from all outside competition or
interference.
If it should be held that these charters, when inconsistent
with, are subject to the provisions of the Transportation Cor-
porations Law, and if the judgment appealed from is affirmed,
the right and obligation of plaintiff to furnish water to the
authorities and inhabitants of Rochester instantly spring into
existence. It thus becomes evident that the real question is
not solely whether, under section 82 of the Transportation
Corporations Law, the plaintiff has the right to pass through
the intervening municipality of Rochester, but is the much
broader question whether, under the amendment of section
81 of the above law, as already pointed out, the plaintiff can
gain a foothold in the city of Rochester which will enable it
to become a competitor of the municipal water system, not-
withstanding the charter provisions already quoted and other
stringent enactments contained therein, and in the ordinances
as to the control of the water system and the public streets,
which cannot, for lack of space, be quoted here in full.
The question, briefly stated, that dominates this case is, can
the plaintiff, under any circumstances, furnish water to the
authorities or inhabitants of the city of Rochester ? I answer
no, unless the city of Rochester permits it.
The charter of the city of Rochester and its amendments
1903.] Rochester & L. O. W. Co. v. City of Rochester. 61
N. Y. Rep.] Dissenting opinion, per Bartlbtt, J.
constitute a special act, and are not repealed by the Trans-
portation Corporations Law in the absence of an express or
necessarily implied statement to that effect.
The White charter is special in nature as to the Transpor-
tation Corporations Law for it is confined to four cities.
Independent of that, however, it is subsequent in date to
the Transportation Corporations Law and, hence, is superior
to the provisions of the latter when there is a necessary
conflict.
4. There is a reason, independent of statutory enactments,
why the city of Rochester should have exclusive and absolute
control of its water system. It is necessarily vested with the
police power as a part of its governmental functions.
The law of paramount necessity is involved and the main-
tenance of the municipal water system, untrammeled by coin-
petition or interference, is essential for sanitary purposes, the
extinguishment of fires and the conservation of the public
health by furnishing an abundant supply of pure and whole-
some water for general consumption.
Chief Justice Redfield said : " The police power of the
State extends to the protection of the lives, limbs, health,
comfort and quiet of all persons and the protection of all
property within the State." (Sharp v. Rutland cfe B . R. R.
Co., 27 Vt. 149.)
A city or other political division of the state acts in a dual
capacity ; in business matters it is treated as a private person
in suing and being sued, but when exercising the delegated
sovereign power of the state it is judged by the same legal
standard as the state itself. (Maxmilian v. Mayor, etc., of
New York, 62 N. Y. 160 ; Hughes v. County of Monroe,
147 N. Y. 49 ; Missano v. Mayor, etc., of New York, 160 N.
Y. 123.)
In People ex rel. N. Y. Electric Lines Co. v. Squire (107
N. Y. 593, 606), Ruger, Ch. J., in discussing the police power,
said : " The right to exercise this power cannot be alienated,
surrendered or abridged by the legislature by any grant, con-
tract or delegation whatsoever, because it constitutes the exer-
62 Rochester & L. O. W. Co. v. City of Rochester. [Oct.,
Dissenting opinion, per Bartlett, J. [Vol. 176.
cise of a governmental function, without which it would
become powerless to protect the rights which it was specially
designed to accomplish."
The police power is as broad and plenary as the taxing
power. (Kidd v. Pearson, 128 U. S. 1.)
This court has held, as already pointed out, that the Roches-
ter water works system is to be regarded as created for the pub-
lic benefit, held for public purposes, and not subject to taxation.
{City of Rochester v. Town of Hush, 80 N. Y. 302.) To sub-
ject this system to competition or interference would be to
weaken and possibly destroy it.
5. In arriving at the conclusion that the plaintiff cannot
lawfully extend its route through the city of Rochester, I
have not adverted to the charter amendments of 1903, as I am
of opinion they are not absolutely essential in reaching that
result. The legislature of 1903 twice amended the charter of
the city of Rochester, section 157 (Laws 1903, chap. 59 ; chap.
553). This section is headed : " Power over streets, et cetera,
to extend water works." The first amendment added these
words to the section : " No other person or corporation shall
enter upon or excavate any road, street, highway or public
place in the city of Rochester, for the purpose of laying down
pipes for the conveyance of water, without the permission of
the common council." This provision limited the exercise of
power to the commissioner of public works. The amendment
became operative March 19th, 1903.
The motion for a preliminary injunction herein was granted
March 18th, 1903, but the order was not entered until two
days later. The appellant claims the legislation precedes the
injunction. The order entered related back to the day the
motion was granted in writing, with a direction that the order
be settled on two days' notice. (Jiobinson v. Govers, 138 N.
Y. 425.) We do not regard this point as material.
The trial of this action, which resulted in the judgment
making the preliminary injunction permanent, did not take
place until the following April. This judgment was entered
notwithstanding the declaration of the legislature that no other
1903.] Rochester & L. O. W. Co. v. City of Rochester. 63
N. Y. Rep.] Dissenting opinion, per Bartlett, J.
person than the commissioner of public works could lay pipes
in the streets for conveying water without the permission of
the common council.
The force of this legislation was sought to be limited by
the trial court in its opinion, but the application of a familiar
canon of construction disposes of the matter, to the effect that
in construing a statute resort may be had to the circumstances
under which and the purposes for which a statute is passed.
(People ex rel. Onondaga County Savings Bank v. Butler,
147 N. Y. 164; Smith v. People, 47 N. Y. 330.)
It was shown that the object of this legislation was to pre-
vent the plaintiff extending its route through the city of
Rochester, and the governor discloses the fact in his memo-
randum handed down when signing the bill.
The plaintiff was possessed of no franchise or vested rights
authorizing it to extend its route through the city of Roches-
ter, and the trial court should have heeded this latest expres-
sion of the legislative will.
The second amendment (Laws 1903, chap. 553) did not
become operative until May 12th, 1903, and need not be con-
sidered at this time, although it is a more emphatic announce-
ment of the legislative intention to make the water works
system of the defendant exclusive.
6. Our attention is called to the fact that the trial court
sought, in its judgment, to protect the defendant by stringent
provisions as to the manner in which plaintiff should proceed
with its work.
The plaintiff's contention was that it is authorized by law to
lay out its route through the city of Rochester, and the local
officials had no authority to interfere in any way. The
defendant's position was that the plaintiff had acquired no
franchise or vested rights in the premises and could not enter
the city of Rochester without its permission. There is no
middle ground lying between these two positions ; the plaintiff
could extend its route through the city of Rochester undis-
turbed, or it was powerless to do so unless the defendant gave
its permission. The provisions in the judgment to which ref-
64 Rochester & L. O. W. Co. v. City of Rochester. [Oct.,
Dissenting opinion, per Bartlktt, J. [Vol. 170.
erence has been made were unauthorized, as the rights of the
parties rest upon legislative enactment.
7. The trial court found (finding XII) that it was necessary
for plaintiff to pass through the city of Rochester " in order
to carry out the purposes of its incorporation and f ullill the
contracts which it has made and assumed," etc. This finding
must be read, however, with another (finding XX), to the
effect that it is a physical possibility to reach the territory on
the east of the city of Rochester without laying any pipes
within its territory, but the cost of construction would be
materially greater.
8. It would seem quite impossible to read this record with-
out reaching the conclusion that the real object of this plain-
tiff is to accomplish by indirection that which it could not
secure otherwise, to wit, an entrance into the city of Roch-
ester, for the purpose of ultimately serving that city and
its inhabitants with water as a competitor of the existing
municipal water works system.
I have previously pointed out that the plaintiff admits that
whenever the question is presented (and we hold that it is
presented now) it will insist that it can legally furnish water
in the city of Rochester to the railroad companies, with which
it has contracted, and to such adjoining owners as can be
reached, without laying its pipes along the streets.
I have also called attention to the fact that if this route can
be extended through the city of Rochester, under the pro-
visions of the Transportation Corporations Law, as contended,
then the amendment of section 81 in 1896 would enable the
plaintiff to furnish water to the defendant and its inhabitants,
subject only to the reasonable regulations and control of the
local authorities.
The learned Appellate Division in its opinion says : " It is
obvious, however, that the incidental privileges of supplying
water to the Central Railroad Company and contiguous prop-
erty owners within the city of Rochester was one of the chief
inducements to the organization of the plaintiff, although that
intention was not embodied in its certificate of incorporation
1903.] Trenton Potteries Co. v. Title G. & T. Co. 65
N. Y. Rep.] Statement of case.
filed with the Secretary of State,, and upon which its organiza-
tion tax was accepted by the State."
The learned court, notwithstanding its expressed conviction
that plaintiff was impelled by ulterior motives, failed to appre-
hend the full legal Tesults of affirming the judgment of the
Trial Term.
It may be further stated that a corporation having a capital
stock of $2,500,000, and the power to issue bonds for a large
sum, would not be justified in marketing such an amount of
securities, if its real object was only to furnish water to the
rural localities named in the certificate, with their small aggre-
gate population.
The fact that the plaintiff has selected the corporate name
of the Rochester & Lake Ontario Water Company is not
without significance as bearing upon plaintiff's ulterior designs.
9. I have to say, in conclusion, that while there are many
objections to the judgment below, the primary and controlling
one is that the plaintiff sought an injunction to promote an
illegal purpose, and, hence, its prayer for relief should have
been denied.
The judgment of the Appellate Division and the Special
Term should be reversed, with co3ts.
Parkkb, Ch. J., Gray and O'Brien, JJ., concur with
Haight, J. ; Martin and Vann, JJ., concur with Bartlett, J.
Judgment affirmed.
The Trenton Potteries Company, Appellant, t\ Title
Guarantee and Trust Company, Respondent.
1. Title Insurance — What Is Insured by Policy op. A policy of
title insurance undertaking to insure the holder thereof against all loss and
damage, not exceeding a specified sum, which the insured shall sustain
by reason of any defect or defects of title, affecting the title of the prop-
erty insured thereby and the interest of the insured therein, or by reason
of unmarketability of the title of the insured to or in the premises, or by
reason of liens or incumbrances charging the same at the date of the
policy, is a contract designed to save the insured harmless from any loss
through defects, liens or incumbrances that may affect or burden his title
n
66 Trenton Potteries Co. v. Title G. & T. Co. [Oct.,
Statement of case. [Vol 176.
when he takes it, and from the very nature of the contract it usually bears
the same date as the deed of the title which it purports to insure, and
if, in any case, there is a discrepancy between such dates it must be due
to some exceptional circumstance which should be noted in the contract.
2. Reformation of Policy — When Insurer Not Liable for Assess-
ment Levied on Property after Conveyance to Insured, but Before
Date of Issuance of Policy. Where a policy of title insurance cover-
ing five separate pieces of property was not issued at the time the deeds
of four of the parcels were delivered and accepted, but its issuance was
postponed until after the title to the fifth parcel was perfected, evidence
of the facts and circumstances under which the contract of insurance was
made showing that there was no purpose on the part of either of
the parties to have any of the titles insured beyond the moment when
they became the property of the insured; that the issuance of & single
policy after all the J i ties were perfected was agreed upon as a matter of
convenience with no thought of changing the liability of the insurer from
what it would have been if a policy upon the first four titles had been
issued when the conveyances thereof were made, and that there was no
mistake as to the actual terms of the agreement expressed in the policy,
but that in reducing it to writing the real date as to a part thereof was
inadvertently omitted, will justify the trial court in reforming the policy
so as to make it conform to the actual agreement of the parties; and
the insured cannot maintain an action to compel the insurer to reimburse
the insured for the amount paid upon an assessment for a street opening,
which became a lien upon one of the four parcels three months after the
insured had taken title thereto and seven months before the policy was
issued.
8. Evidence— Testimony of Experts Not Competent to Support
Conclusion That the Policy Should Have Been Different in
Form. Testimony of experts in title insurance as to what they would
have done, or what ought to have been done, in the issuance of the policy
in question, and as to the custom of title insurance companies in such
cases, is not admissible to support the legal conclusion that the policy
should have been different in form.
Trenton Potteries Co. v. Title Guarantee <& Trust Co., 68 App. Div. 636,
affirmed,
(Argued May 15, 1903; decided October 6, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered Febru-
ary 13, 1902, affirming a judgment in favor of defendant
entered upon a decision of the court on trial at Special Term.
The nature of the action and the facts, so far as material,
are stated in the opinion.
1903.] Trenton Potteries Co. v. Title G. & T. Co. 67
N. Y. Rep.] Opinion of the Court, per Werner, J.
Howard B. Bayne for appellant. The learned trial judge
erred in overruling plaintiff's objections to answers that vio-
late the rule of evidence which requires a witness to state
facts or conversations and not give conclusions or opinions
upon the question which the jury is to determine. {Turner
v. City of Newburg, 109 N. Y. 301 ; Wanamaker v. Megraw,
168 N. Y. 132 ; Ives v. EUis, 169 K Y. 85 ; Bank of State
ofN. T. v. S. Nat Bank, 170 N. Y. 1 ; Jefferson v. N. Y.
El. B. B. Co., 132 N. Y. 483 ; Foote v. Beecher, 78 N. Y.
155 ; Hall v. TI. S. Badiator Co., 76 App. Div. 504.) There
is no evidence that a mutual mistake between plaintiff and
defendant was made. (Allison Bros. Co. v. Allison, 144 N.
Y. 31 ; Ifevin* v. Dunlap, 33 N. Y. 680 ; Curtis v. Albee,
167 K Y. 364.)
George Coggitt and John L. Cadwalader for respondent.
Upon the facts as now shown by the evidence the court might,
without the necessity of reforming the policy, construe it in
the light of the circumstances surrounding the contract for its
issuance and occasioning delay in its delivery, as limiting the
defendant's liability for liens to those only which arose uppn
the several properties prior to the time they were respectively
conveyed. (Draper v. Snow, 20 N. Y. 331 ; Kincaid v. Archi-
bald, 73 N. Y. 189 ; Barlow v. & N. Nat. Bank, 63 N. Y.
399, 402; S. T. S. B. Co. v. Jenks, 19 App. Div. 314.) The
rulings of the trial court upon the admissibility of evidence
were correct. (Be St. Laurent v. Slater, 23 App. Div. 70 ;
CarroU v. N. Y. El. B. B. Co., 14 App. Div. 278 ; 162 N.
Y. 603 ; Smith v. Wetmore, 24 Misc. Rep. 225.)
Werner, J. This action is brought to recover upon a
policy of title insurance, the amount of an assessment which
became a lien upon the property of the plaintiff, after it had
taken title thereto and gone into possession thereof, but
before the date of the policy. It appears that the plaintiff, a
New Jersey corporation, was formed for the purpose of taking
over the property and business of live pottery plants in Tren-
68 Trenton Potteries Co. v. Title Gr. & T. Co. [Oct.,
Opinion of the Court, per Werner, J. [Vol. 17ft.
ton, New Jersey, known as the Empire, Crescent, Equitable,
Delaware and Enterprise, and it employed the defendant to
search the titles and to insure them. Earlv in Julv, 1892, the
titles to four of these plants were ready for transfer, but the
title to the "Empire" plant was incumbered by certain
infants' interests that could not be conveyed without judicial
sanction in proceedings instituted for that purpose. This
complication led to an interview between a representative
of the plaintiff and another of the defendant, in which it
was decided to have a single policy to cover all of the
properties, and to defer the issuance thereof until the
"Empire" title could be perfected. At this interview
the deeds conveying to the plaintiff the Crescent, Equitable,
Delaware and Enterprise potteries were delivered to defend-
ant's representative and by him recorded, and thereupon the
plaintiff went into possession of these four plants. The
defects in the " Empire " title were removed and the convey-
ance ot that property was made on April 19th, 1893, the deed
being recorded April 24th, 1893, on which date the policy in
suit was issued.
On the 12th of October, 1892, an assessment for a street
opening became a lien on the " Crescent " property. This
was three months after the plaintiff had taken title thereto,
and seven months before the defendant issued its policy.
The plaintiff, having paid the assessment, called upon the
defendant for reimbursement, whicli was refused, and this
action was brought.
There have been two trials. Upon the first trial it was
heid that the plaintiff could nok recover because it was the
owner of the property upon which the assessment was made
at the time it became a lien. The judgment entered upon
that decision was reversed at the Appellate Division upon the
ground that it could not be held as matter of law that a policy
dated subsequent to the assessment, and which in terms pur-
ported to insure against liens and incumbrances charging the
property at the date of the policy, was intended to cover only
such liens and incumbrances as existed when the plaintiff took
1903.] Trenton Potteries Co. v. Title GL & T. Co. 69
X. Y. Rep.] Opinion of the Court, per Werner, J.
title. Upon the second trial the defendant was permitted to
introduce oral evidence in support of its allegation, that by
inadvertence and mistake the policy was dated April 24th,
1893, when in fact it should have been dated July 1st, 1892,
as to the four properties conveyed on the latter date. The
learned trial court held that the allegation of mistake was
abundantly supported by the evidence, and the judgment in
favor of defendant^ entered upon that decision, has been
unanimously affirmed by the learned Appellate Division.
The learned counsel for the appellant, realizing the limita-
tions imposed upon him by the unanimous affirmance, takes
the position that if the incompetent evidence received over
his objections was expunged from the record it would be
barren of proof tending to show inadvertence or mistake in
the framing of the contract of insurance. This contention is
amply justified so far as it relates to the evidence of so-called
experts in title insurance who were permitted to give their
opinions as to what they would have done or what ought to
have been done in the issuance of such a policy under the
conditions above described. There is so much of that kind of
incompetent evidence received under the objections and excep-
tions of plaintiffs counsel that we cannot attempt to repro-
duce it here, and we shall only give two or three specimen
questions and answers to illustrate how far afield the defense
was permitted to go in its attempt to secure a reformation of
the contract on the ground of inadvertence and mistake.
One Van Buskirk, a lawyer and a director of the defend-
ant, was asked : " If you had issued a policy of insurance at
or about that time on the closing of these titles, upon the four
titles which were pronounced to be good, what would have
been the date of that policy of insurance?" The witness
answered : " The date of the recording of the deeds." Another
witness for the defendant named Green, who was manager of
a New York title insurance company, was asked : " In a
case where several pieces of property were transferred, but
on different dates, and the record date of the different deeds
bore, of course, different dates, what, under such circnm-
70 Trenton Potteries Co. v. Title G. & T: Co. [Oct.,
Opinion of the Court, per Werner, J. . [Vol. 176.
stances, does the policy if it bears a single date and is a
single policy show in the custom of your business?" The
answer of the witness was: "As a matter of form it
would bear the date of the face of the last deed, but as to
its application it would only have the application of the
record dates of the several deeds." And, again, a witness,
Bailey, was asked : " In what respect does this policy fail to
conform to the usual form of title in^irance policy under
these circumstances ? " His answer was : " It insures against
liens, subsequent to the date of the acquiring of the title of a
number of the properties set forth in the policy." In these
three instances which, as we have said, are merely illustrative
of numerous others, defendant's witnesses testified to what
they would have done under similar circumstances; to the
custom of other title insurance companies in such cases, and
to the legal conclusion that the policy should have been dif-
ferent in form. m
This unique and summary disposition of the whole case
would excite no less surprise than criticism were it not for
the embarrassments by which the learned trial court and
the counsel for the defendant were surrounded. A former
trial court had held, in substance, that the mistake in the
policy was obvious on its face, or that it should at least be
so construed as to cover no liens or incumbrances accruing
after the several titles had vested in the plaintiff. The appel-
late court had disagreed with this view and ordered a new
trial on the ground that the policy as written covered the
assessment, which became a lien upon the " Crescent " prop-
erty prior to the date of the policy, although after defendant
took title thereto, and that the policy would have to be
reformed before the defendant could be relieved from liability.
These embarrassments were accentuated by the fact that this
was not the usual case of mistake caused by a misunderstanding
of terms expressed in conversation and inaccurately or errone-
ously transcribed into the written instrument ; on the contrary,
the mistake was the result of inadvertence in the failure of
the parties' to notice that the date of the policy, unquali-
1903.] Trenton Potteries Co. v. Title G. & T. Co. 71
X. Y. Rep. J Opinion of the Court, per Werner, J.
fied and unexplained, had the effect of creating a contract
that was not intended to be made by either party. As
the Appellate Division had laid down no rule of procedure
for the second trial it was obvious there was but scant room
for competent oral evidence, unless the opinions of experts in
title insurance could be received, and this probably accounts
for the freedom with which incompetent testimony was offered
and admitted when once the forbidden field had been entered.
"We hold that the opinions of the experts were not compe-
tent, and when that testimony is expunged from the case it
becomes apparent that the unanimous affirmance in the Appel-
late Division will not support the judgment herein unless the
nature and purpose of the contract, coupled with the facts and
circumstances surrounding the transaction, are such as to
justify or require a reformation of the policy. In determin-
ing that question it becomes necessary to Scrutinize somewhat
more closely the contract as written, its nature and purpose,
the conditions under which it was made, and the legitimate
oral evidence, if any, bearing upon the transaction.
First. As to the written contract. In the body of the
policy the defendant undertakes to insure the plaintiff
"against all loss or damage, not exceeding Four hundred
thousand dollars, which the insured shall sustain by reason of
any defect or defects of title affecting the premises described
in schedule 6 A' hereto annexed, affecting the interest of the
insured therein as described in said schedule, or by reason of
unmarketability of the title of the insured to or in said prem-
ises, or by reason of liens or incumbrances charging the same
at the date of this policy." The policy is dated April 24th,
1893. The premises described in schedule " A" are the five
pottery plants above referred to. The assessment which
occasions this suit became a lien in October, 1892 ; or seven
months prior to the date of the policy. Upon these facts,
considered alone, there could hardly be any controversy as to
the meaning of the contract. But schedule " A " enumerates
the several deeds by which the five pottery plants were con-
veyed to the plaintiff, and shows that four of them, including
72 Tbenton Potteries Co. v. Title G. & T. Co. [Oct.,
Opinion of the Court, per Werner, J. [Vol. 176.
the one affected by the assessment, are dated June 16th, 1892,
and were recorded July 8th, 1892, which was three months
before the assessment became a lien. The plaintiff went into
possession of these four plants immediately upon taking title
thereto, although the deeds thereof were left with the defend-
ant pending the perfecting of the title to the fifth plant and
the issuance of the policy.
Second. As to the nature and purpose of the contract. The
contract is one of insurance against defects in title, unmarket-
ability, liens and incumbrances. The risks of title insurance
end where the risks of other kinds begin. Title insurance,
instead of protecting the insured against matters that may
arise during a stated period after the issuance of the policy, is
designed to save him harmless from any loss through defects,
liens or incumbrances that may affect or burden his title when
he takes it. It must follow, as a general rule, therefore, that
when the insured gets a good title, the covenant of the insurer
has been fulfilled and there is no liability. It is also apparent
from the very nature of the contract that it usually bears the
same date as the deed of the title which it purports to insure?
and that if, in a given case, there is a discrepancy between
these dates, it must be due to some exceptional circumstance
which should be noted in the contract. In the contract-before
us the absence of any special note as to the date negatives any
intention to take this case out of the general rule.
Third. As to the facts and circumstances under which the
contract was made. The plaintiff, as a part of its plan of
organization, was to take over the title to the five potteries
above named. Four of these titles were perfected July 8th,
1892. Had the fifth title been ready at the same time, the
policy of insurance upon the five titles would, of course, have
been issued at that time. The fifth title being imperfect,
the question arose whether the defendant should then issue
separate policies upon each of the four perfected titles and
issue a fifth one when the outstanding title was made good ;
or whether the plaintiff desired to cover the four perfected
titles with one policy then to be issued, and the other title,
1903.] Trenton Potteries Co. v. Title G. & T. Co. 73
N. Y. Rep.] Opinion of the Court, per Werner. J.
when perfected, with a second policy ; or whether a single
policy covering all the titles would be issued when all were
perfected. It was finally decided to pursue the latter course,
and the testimony of Halsey, the defendant's representative,
as to the conversation between him and Mr. Ledyard, of
counsel for the plain tiff, clearly shows how it came about.
He says : "After the titles to the four pieces of property were
closed, Mr. Ledyard asked me for our policy of title insur-
ance. I explained to him that it was impossible for us to
prepare the policy insuring the titles of this kind before the
matter was closed, and I offered to deliver the policy to him
by the next day if he wished it. He then suggested that we
could not guarantee the title of the fifth piece anyway, and
I asked him whether he would prefer to wait for his policy
until the Trenton Potteries Company had taken title to the
fifth piece and then to have a single policy covering all their
property, or whether he would have a policy for the four
pieces at once, and a separate policy for the fifth piece when
his company had taken title. He asked me whether I thought
that the Title Company would be responsible anyway if the
title were bad and laughed when I said I thought they would
be. He then consulted with the officers of the company who,
with several members of the new company and former owners
of the property mentioned above, were in one of his offices,
I being present, and it was decided that the more convenient
way would be to take a single policy when they acquired title
to the fifth piece and not to take any policy at that time for
the four pieces."
In the foregoing combination of elements, which may
properly be considered in determining what the contract
between the parties was intended to be, we have, as it seems
to us, the clearest indication that there was no purpose on the
part of either party to have any of the titles insured beyond
the moment when they became the property of the plaintiff.
This is attested by the nature and purpose of the contract,
the absence of any special condition therein taking the case
out of the ordinary rule, and by the conversations between
J
74 Trenton Potteries Co. v. Title G. & T. Co. [Oct.,
Opinion of the Court, per Werner, J. [Vol. 176.
Halsey and Ledyard, from which it appears that the issuance
of a single policy, after all the titles were perfected, was
agreed upon as a matter of convenience and with no thought
or suggestion of changing the liability of the defendant from
what it would have been if a policy upon the four titles had
been issued when the conveyances thereof were made. The
whole transaction tends to show that there was no mistake as
to the actual terms of the agreement, but that in reducing it
to writing the real date as to a part thereof was inadvertently
omitted. That is the sum and substance of the whole matter.
Upon these competent facts and circumstances alone the trial
court should have reformed the written policy so as to make
it conform to the actual agreement of the parties, and in this
view of the case the excision of the incompetent evidence
referred to does not affect the result. This conclusion
seems to be supported by either one of the following two
views that may be taken of the transaction : If there was no
mistake in the agreement as made and understood between
the parties, and the scrivener in reducing it to writing inad-
vertently omitted an essential element thereof, the court had the
right to reform the written contract, under the case of Born
v. Schrenkeisen (110 N. Y. 55); if, on the other hand, this is
regarded as an instance of actual mistake in the making of the
contract, then the mistake was mutual and the reformatory
power of the court is properly invoked on that ground. The
evidence of Halsey as to the conversation between him and
Ledyard when the first four titles were passed, was competent
as bearing upon the date which the subsequently issued policy
should have borne in relation to those titles. Oral evidence
of mistake in the date of a written instrument is always
admissible. (Kincaid v. Archibald, 73 N. Y. 193.)
Counsel for the plaintiff and appellant in the course of his
very able argument, suggested that defendant had been negli-
gent in searching these titles, and for that reason it should not
be permitted to escape its liability as an insurer. "Whatever
the fact may be in regard to defendant's alleged negligence,
it is enough to say that this action is not based upon that
1903.] Wanamaker v. Weaver. 75
N. Y. liep.] Statement of case.
ground. The contract of insurance is distinct and separate
from the contract of searching. This action is brought upon
the contract of insurance. Under the contract for searching
titles the defendant may be liable for any damages which iti
negligence may have imposed upon the plaintiff. (Ehmer v.
Title Guarantee & Trust Co., 156 K Y. 10.) Under the
contract of insurance no question of negligence in searching
can arise.
For these reasons the judgment herein should be affirmed,
but in view of the apparent justification of this appeal by
reason of the incompetent evidence received at the instance
cf the respondent, the affirmance should be without costs.
O'Brien, Bartlett, Haight, Vann and Cullen, JJ.,
concur ; Martin, J., not voting.
Judgment affirmed.
John Wanamaker, Kespondent, v. Simon J. Weaver,
Appellant.
Husband and Wife — Liability of Husband for Goods Purchased
by Wife — Wife's Agency a Question of Fact. A husband living
with his wife, who supplies her with necessaries suitable to her position
and his own, or furnishes her with ready money with which to pay cash
therefor, is not liable for the purchase price of other goods sold to her, of
the same character as necessaries, in the absence of affirmative proof of his
prior authority or subsequent sanction, the question of the wife's agency
being one of fact and not a conclusion of law to be drawn alone from the
marital relation.
Wanamaker v. Weaver, 73 App. Div. 60, reversed.
(Argued June 17, 1908; decided October 6, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
May 22, 1902, reversing a judgment in favor of defendant
entered upon a verdict and granting a new trial.
The nature of the action and the facts, so far as material,
are stated in the opinion.
76 Wanamaker v. Weaver. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 176.
Charles Van Voorhis for appellant. The case was submit-
ted to the jury without error. {Cromwell v. Benjamin, 41
Barb. 558 ; Reneaux v. Teakle, 20 Eng. L. & Eq. 345 ; Bergh
v. Warner, 47 Minn. 250 ; Raynes v. Bennett, 114 Mass.
424 ; Compton v. Bates, 10 111. App. 78 ; Davis v. Caldwell,
12 Cush. 512 ; 2 Lawson on Personal Bel. § 726 ; Schouler on
Dom. Eel. § 61 ; Burghart v. Angerstein, 6 C. & P. 690 ;
Freestone v. Butcher, 9 C. &. P. 643 ; Reid v. TeaUe, 13 C.
B. 627 ; Benttey v. Grijjm, 5 Taunt. 356.) No errors were
committed by the trial court in its rulings on evidence.
(Schouler on Dom. Bel. % 64 ; Merritt v. Briggs, 57 N. Y.
651 ; Pope v McGiU, 58 Hun, 294.)
Harry Otis Poole for respondent. There was no question
of fact as to whether the articles sold were " necessaries/'
They were concededly so. The trial court erred in submit-
ting this question to the jury, and also in its submission of
the law as stated during the trial as to the right of the defend-
ant to show that his wife was abundantly supplied with articles
purchased elsewhere. (Schouler on Dom. Bel. § 64 ; Stewart
on Husband & Wife, §§ 94, 95 ; Waithman v. Wakefield, 1
Camp. 102 ; Keller v. Phillips, 39 N. Y. 354 ; Zimmer v.
Settle, 124 N. Y. 45 ; Manly v. Scott, 1 Mod. 124; Dyer v.
East, 1 Ventr. 42 ; Johnson v. Sumner, 3 H. & N. 266.) It
is clear from the evidence that the goods were sold on the
credit of the defendant and the trial court erred in submit-
ting this question to the jury. (Tiemeyer v. Turnquist, 85
K Y. 516 ; Kegney v. Ovens, IS K Y. S. B. 482 ; Lindholm
v. Kane, 92 Hun, 369 ; Winkler v. Schlager, 64 Hun, 83 ;
Lamb v. Milnes, 5 Vesey, 520 ; Knox v. Picket, 4 Desaus,
92 ; Hay good v. Harris, 10 Ala. 291 ; Curtis v. Engel, 2
Sandf. Ch. 287 ; Matter of Shipman, 22 Abb. [N. C] 291 ;
Graham v. Schleimer, 28 Misc. Bep. 535.)
Haight, J. This action was brought to recover the pu>
chase price of goods sold by the plaintiff to the defendant's
wife, in the city of Philadelphia, without the defendant's
1903.J Wanamakeb v. Weaver. 77
M. Y. Rep.] Opinion of the Court, per Haiqht. J.
knowledge or consent. The defendant and his wife resided
in the city of Kocheeter, and at the time the goods were pur-
chased lived together as husband and wife. It was claimed
on behalf of the defendant that while the goods might ordi-
narily be deemed necessaries they were not in fact such, for
the reason that the defendant lived on a salary of $2,000 per
year, out of which he delivered to his wife $1,500 in monthly
installments of $125 with which to supply his table and pur-
chase her necessary wiearing apparel ; and at the time she pur-
chased the goods in Philadelphia she was amply supplied with
articles of a similar character, and was not in need of the
articles purchased. Upon the trial the defendant sought to
show the character and the amount of clothing possessed by
the defendant's wife at the time she made the purchase of the
plaintiff in Philadelphia. This was objected to. The objec-
tion %?as overruled and an exception was taken. The court
in discussing the question stated the law to be as follows:
" that if a married woman goes to a merchant and within
reasonable limitations buys articles suitable for the family use
and for her own wardrobe, the presumption is, in the absence
of evidence to the contrary, that the husband is liable. But
if it appears affirmatively that the lady was abundantly sup-
plied with similar articles, purchased elsewhere, and that there
was not, in fact, any reasonable necessity for such expenditure,
the husband cannot be held responsible unless there is some
affirmative proof of actual authority, outside of the authority
the law infers from their marital relations." This view was
substantially repeated by the trial judge in his charge to the
jury, and an exception was taken thereto. The trial court
also submitted to the jury the question as to whether the plain-
tiff gave credit to the defendant, or to his wife. The verdict
was in favor of the defendant.
The only question which we deem it necessary to consider
is that raised by the exception to the charge as made, sub-
mitting to the jury the question as to whether the defendant's
wife was abundantly supplied with similar articles to those
purchased at the time of the purchase, and, therefore, the
78 Wanamakkr v. Weaveb. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 176.
articles were not necessary for her support and maintenance.
The majority of the judges of the Appellate Division appear
to have entertained the view that, if the articles purchased by
the wife were of the character ordinarily deemed necessaries,
such as clothing, table linen, towels and napkins, the merchant
was at liberty to furnish her therewith and charge her husband
therefor, without regard to the amount purchased or the
necessity therefor. In commenting upon the charge of the
trial court, they say in their opinion : " We have, therefore,
this principle enunciated. That if a wife, living with her
husband, seeks to purchase goods of a merchant, the latter
must make inquisitorial examination and ascertain whether
the family possess an adequate supply of the articles which
the wife desires to purchase."
It will readily be observed that while the amount involved
in this case is trivial, the principle is of considerable import-
ance. While the question seems to have been considered in
the lower courts, it does not appear to have been squarely
decided in this court. In the case of Keller v. Phillips (39
N. Y. 351) the husband had given the merchant notice not
to give the wife further credit, and in the case of Hatch v.
Leonard (165 N. Y. 435) the husband and wife lived separate
and apart; so that neither of these cases afford us much
help in determining the question presented in this case. In
the case of Cromwell v. Benjamin (41 Barb. 558) the
General Term sustained the right of a merchant to recover
of the defendant for the necessaries furnished to his wife.
J. C. Smith, J., in delivering the opinion, states the law, as he
understood it, as follows : " But the husband may be liable for
necessaries furnished to the wife, in certain cases, though the
existence of an agency or assent, express or implied in fact,
is wholly disproved by the evidence, and this* upon the ground
of an agency implied in law, though there can be none pre-
sumed in fact. It is a settled principle in the law of husband
and wife that by virtue of the marital relation, and in conse-
quence of the obligations assumed by him upon marriage, the
husband is legally bound for the supply of necessaries to
1903.] Wanamakbr v. Weaver. 79
K. Y. Rep.] Opinion of the Court, per IIaight, J.
the wife, so long as she does not violate her duty as wife ; that
is to say, so long as she is not guilty of adultery or elopement.
The husband may discharge this obligation by supplying her
with necessaries himself or by his agents, or giving her an
adequate allowance in money, and then he is not liable to a
tradesman who, without his authority, furnishes her with nec-
essaries." In Bloomingdale v. Brinckerhoff (2 Misc. Rep.
49 ; 49 N. Y. St. Rep. 142) it was held that in order to entitle
the tradesman to recover from the husband it was incumbent
upon him to show that " the articles supplied to the wife were
not only of the kind usually denominated necessaries, because
their need is common to all persons, but that in consequence
of the inadequacy of the husband's provision they were actu-
ally required for the wife's proper support, commensurate
with his means, her wonted living as his spouse, and her station
in the community."
There are numerous other cases reported in this and other
states bearing upon the liability of the husband for necessa-
ries, but attention has been called to those mo6t nearly in point
upon the question involved in this case. There are, however,
some cases in England where the question appears to have been ,
more thoroughly considered in the higher courts. In the case
of Debenham v. Mellon (L. R. [5 Q. B. Div.] 394), Bbamwell,
L. J., in stating the question involved, says : " The goods were
necessaries in the sense that they consisted of articles of dress
suitable to the wife's station in life ; but they were not neces-
saries in the sense that she stood in need of them, for 6he had
either a sufficient supply of articles of a similar kind, or at
least sufficient means from her husband or otherwise to acquire
them without running him into debt for them." He then pro-
ceeds to state the cases in which the husband would be liable.
As for instance, where he turns his wife out of doors, or con-
ducts himself in such manner as to oblige her to leave him,
she may provide herself at his expense and pledge his credit
for necessaries, such as food, apparel, lodging and medicine.
In case they are living and cohabiting together and there has
been a custom of contracting short credit as to a class of
80 Wanamaker v. Weaver. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 176.
articles, such as grocery and meat bills, her authority to order
the same may be inferred, not for the reason that it springs out
of the contract of marriage, but because of her existing rela-
tion as the head of his household ; that the same authority would
be inferred in favor of a sister, or a housekeeper, or other person
who presided over the management of his house. The judge
concluded by holding that the husband was not liable. The
same case was subsequently brought up for review in the House
of Lords (L. R. [6 Appeal Cases] 24). Lord Chancellor Sel-
bornk then considered two questions. The first was whether
the mere fact of marriage implies a mandate by law, making
the wife the agent in law of her husband, to bind him by her
contract, and to pledge his credit. Upon this point he says
that " according to all the authorities, there is no such man-
date in law from the fact of marriage only, except in the par-
ticular case of necessity ; a necessity which may arise when
the husband has deserted the wife, or has by his conduct com-
pelled her to live apart from him, without properly providing
for her, — but not when the husband and wife are living
together, and when the wife is properly maintained ; because
there is, in that state of circumstances, no prima facie evi-
dence that the husband is neglecting to discharge his neces-
sary duty, or that there is any necessary occasion for the wife
to run him into debt, for the purpose of keeping herself alive,
or supplying herself with lodging or clothing." The second
question considered by the lord chancellor was whether the
law implied such a mandate from the fact of cohabitation.
Upon this point he says : u If, therefore, the law did imply
any such mandate from cohabitation, it must be an implica-
tion of fact, and not as a conclusion of law. There are,
no doubt, various authorities which shew that the ordinary
state of cohabitation between husband and wife does carry
with it some presumption, some prima facie evidence, of
an authority to do those things, which, in such ordinary
circumstances of cohabitation, it is usual for a wife to do,
* * * because, in that state of circumstances, the hus-
band may truly be said to do acts, or habitually to con-
1903.] Wanamaker v. Weaver. 81
N. Y. Rep.] Opinion of the Court, per Haight, J.
sent to acts, which hold the wife out as his agent for certain
purposes. * * * But where there has been nothing done,
nothing consented to by the husband to justify the proposi-
tion that lie has ever held out the wife as his agent, I appre-
hend that the question whether, as a matter of fact, lie has
given the wife authority, must be examined upon the whole
circumstances of the case. No doubt, though not intending
to hold her out as his agent and though she may not actually have
had authority, the husband may have so conducted himself as
to entitle a tradesman dealing with her to rely upon some
appearance of authority for which the husband ought to be
held responsible. If he has so acted he may be bound, but
the question must be examined as one of fact and all the
authorities, as I understand them, practically treat it so when
they speak of this as a presumption prima facie, and not
absolute ; not a presumption of law, but one capable of being
rebutted." The chancellor then proceeds to consider the
facts in the case and concludes by holding the husband not
liable, stating that : " It was argued that because these articles
were found to be in some sense necessaries in their nature the
husband ought therefore to be bound. But, even if the husband
and wife had been living apart, the husband would not be bound
by reason of such things being necessaries if he made a reason-
able allowance to his wife and duly paid it ; much less can he
be bound in a case like this where they were not living apart
and when he made her an allowance sufficient to cover all
proper expenditure for her own and her children's clothing."
In the still more recent case of Morel Brothers and Com-
j)any, Ltd., v. The Earl of Westmoreland (L. R. [1 K. B.
1903] 64), it was held that the presumption which arises that
the husband has given the wife authority to pledge his credit
for necessaries may be rebutted by proof of an arrangement
tinder which a substantial allowance has been made by the
husband to the wife for household expenses. In this case
Mathew, L. J., concludes his opinion by stating : " There is
no real hardship to tradesmen involved in such cases as this.
They should understand that the question is always one of
6
82 Wanamaker v. Weaver. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 176.
agency and it is incumbent on them to prove the wife's agency.
They can easily protect themselves from any great risk in such
cases, but if they think it answers their purpose better to go
on giving credit for goods ordered by the wife without taking
any steps to ascertain whether she has authority to pledge her
husband's credit, they must run the risk of its ultimately
turning out that she has no such authority."
Schouler on Husband and Wife (Sec. 107) sums up the
authorities upon the subject as follows : " Not only is the hus-
band permitted to show that articles in controversy are not
such as can be considered necessaries, but he may show that he
supplied his wife himself, or by other agents, or that he gave
her ready money to make the purchase. This is on the prin-
ciple that the husband has the right to decide from whom and
from what place the necessaries shall come, and that so long
as he has provided necessaries in some way, his marital obliga-
tion is discharged, whatever may be the method he chooses to
adopt. Accordingly, in the class of cases which we are now
considering, namely, where the spouses dwell together, so long
as the husband is willing to provide necessaries at his own
home ho is not liable to provide them elsewhere. In general,
while the spouses live together, a husband who supplies his
wife with necessaries suitable to her position and his own, is
not liable to others for debts contracted by her on such an
account without his previous authority or subsequent sanction."
For further authorities and discussions upon the subject see
10 Central Law Journal, 341 ; 54 Central Law Journal, 472 ;
IS Am. Law Reg. (N. S.) 412-416 (Judge Bennett's note);
20 Am. Law Reg. (N. S.) 324 (Judge Bennett's note) ; Clark
v. Cox (32 Mich. 204).
The discussion of the English cases, to which attention has
been called, covers the points involved in this case. They, in
effect, hold, in accordance with the charge made by the judge
in this case, that the husband, in defense, may show that the
wife was amply supplied with articles of the same character as
those purchased, or that she had been furnished with ready
money with which to pay cash therefor ; that the question of
1903.] Wanamaker v. Weaver. 83
N. Y. Rep.] Opinioa of the Court, per Haight, J.
lier agency is one of fact, and is not a conclusion of law to
be drawn alone from the marital relation. The conclusions
reached in these cases are in accord with the rule as stated by
Schouler and some of the decisions alluded to in this state,
and we incline to the view that the rule recognized by them
is the safer and better rule to follow. It compels the hus-
band to pay in a proper case, and at the same time affords him
some financial protection against the seductive wiles exerted
by tradesmen to induce extravagant wives to purchase that
which they really do not need. We do not participate in the
alarm which appears to have possessed the learned justices of
the Appellate Division on account of the possible inquisitorial
examination to which the wives may be subjected. The
anxiety of tradesmen to sell will be sufficient to protect them
from any improper u inquisitorial examination." If a wife
k g°^ng t° a merchant to trade, with whom she is acquainted
and with whom she has been accustomed to trade upon the
credit of her husband, she may still continue to do so until the
husband gives notice prohibiting the merchant from longer
giving credit to her. But when she goes to a stranger, with
whom she has never traded before and where consequently
there is no implied authority on the part of the husband to
give her credit, and seeks to purchase upon her husband's
credit, it is but reasonable and proper that she disclose to the
merchant her authority therefor, or for the merchant to request
such disclosure.
We have discovered no errors in the rulings of the trial
court. The judgment of the Appellate Division should*
therefore, be reversed, and that entered upon the verdict
affirmed, with costs.
Gray, Vann, Cullen and Werner, J J., concur ; Parker,
<Ch. J., dissents ; Martin, J., absent.
Judgment reversed, etc.
84 People v. Gaimari. [Oct.,
Statement of case. [Vol. 176.
The People of the State of New York, Respondent,
v. Carmine Gaimari, Appellant.
1. Murder— Sufficiency of Evidence. The evidence upon the
trial of an indictment for murder reviewed and held sufficient to warrant
a verdict convicting the defendant of the crime of murder in the first
degree.
2. Evidence — Competency of Threats Made by Defendant.
Threats of the defendant to kill the deceased, made a short time before the
homicide, are competent evidence especially when the homicide is claimed
to have been excusable or justifiable, but should be received with caution,
since many an idle threat is made, and vords spoken under excitement
are liable to be misunderstood.
3. Incompetency of Evidence of Specific Acts of Violence of
Deceased Toward Third Person. Where the accused claims that he
acted in self-defense, it is competent to show the general reputation of the
deceased for violence, but evidence of specific, acts toward a third person,
especially where it does not appear that defendant had heard of them, is
inadmissible.
4. Charge. Error cannot be predicated upon a charge which is too
lenient toward the defendant and is in accordance with the request of his
counsel.
(Argued June 19, 1903; decided October 6, 1903.)
Appeal from a judgment of the Court of General Sessions
of the Peace in the county of New York, rendered February
27, 1903, upon a verdict convicting defendant of the crime of
murder in the first degree ; also from two orders of said court
denying motions for a new trial and in arrest of judgment,
respectively.
The indictment charged that on the 6th of October, 1902,
at the borough of Manhattan, county of New York, the
defendant, feloniously and with malice aforethought, took the
life of Josephine Santa Petro by shooting her with a revolver.
The facts, so far as material, are stated in the opinion.
Charles E. Le Barbier for appellant. The verdict was
against the evidence, and the weight of evidence, and against
the law. {People v. Filipelliy 173 N. Y. 509 ; People v.
1903.] People v. Gaimari. 85
N. Y* Rep.] Opinion of the Court, per Vann, J.
Decker, 157 N. Y. 186 ; People v. Kennedy, 164 N. Y. 458 ;
Code Cr. Pro. § 528 ; People v. Johnson, 70 App. Div. 308 ;
People v. Fitzgerald, 156 N. Y. 253 ; People v. Bron, 90
Hun, 509.) The learned trial court erred in not instructing
the jury upon the law of justifiable homicide. (Canners v.
Walsh, 131 N. Y. 590 ; People v. Ilelmer, 154 N. Y. 596 ;
People v. Chartoff, 72 App. Div. 555 ; People v. Cantor, 71
App. Div. 185 ; People v. Glennon, 175 N. Y. 55.)
William Travers Jerome, District Attorney {Robert C.
Taylor and Howard S. Gans of counsel), for respondent.
The question of premeditation and deliberation was clearly
one for the jury under the circumstances of the case. {People
v. Conroy, 97 N. Y. 62 ; People v. Sliney, 137 N. Y. 570 ;
People v. Decker, 157 N. Y. 187 ; People v. Beckwith, 108
N. Y. 67; Leighton v. People, 88 N. Y. 117; P^qpfe v.
Zachello, 168 N. Y. 35 ; PtqpZ* v. Cignarale, 110 K Y. 23 ;
P*0p& v. Walworth, 4 N. Y. Crim. Kep. 355.) The defend-
ant's claim of self-defense was manifestly a question of fact
for the jury. (People v. Constantino, 153 N. Y. 24; People
v. Sullivan, 173 N. Y. 122 ; People v. Conroy, 97 K Y. 62 ;
People v. McGuire, 135 N. Y. 639 ; i>*0/?fe v. Cullen, 23 N.
Y. S. E. 559.)
Vann, J. At the time of the homicide the defendant lived
with his wife in a double tenement house known as No. 56
Roosevelt street, in the city of New York, and Josephine
Santa Petro, the deceased, lived with her husband in the same
building. The defendant worked in Jersey City, and the
deceased was janitress of the building in which both resided.
He was 31 years old, weighed 130 or 135 pounds and was not
quite as tall as the deceased, who was about 40 years of age,
five feet and six inches in height, weighed from 175 to 180
pounds, and was a strong, robust, muscular woman. They
were acquaintances, more or less intimate, and there was some
evidence of jealousy of the deceased on the part of the defend-
ant's wife and of threats made by the former that she would
86 People v. Gaimari. [Oct.,
Opinion of the Court, per Vann, J. [Vol. 176.
kill the defendant and his wife and that these threats had
been communicated to him.
Maggie Santa Petro, a little daughter of the deceased,
twelve years of age, testified that a few days before the homi-
cide the defendant came up to the rooms occupied by her
father and his family and, knocking at the door, said he was
the landlord, Mr. Golden, but the door was not opened,
whereupon he broke in the window, " pulled out a revolver
and he pointed it in ; my mother ran in the front room door ;
he said * I was going to leave you dead in Roosevelt Street.' "
Two day 8 before the homicide, a precept issued by a local
court, requiring the defendant forthwith to remove from his
rooms at No. 56 Roosevelt street or show cause before the
court on the 7th of October, 1902, at ten a. m., why posses-
sion of the premises should not be delivered to Barnard
Golden, the landlord, was served upon the defendant and was
found upon his person immediately after the homicide.
The homicide took place on the 6th of October, 1902,
between nine and ten in the morning, at No. 56 Roosevelt
street. The witnesses who saw the occurrence, in whole or
in part, differ somewhat in their versions, so that a review of
the case upon the merits, which is substantially the only duty
presented by the record, requires an analysis of the evidence.
William Gibson, a seafaring man, was in front of No. 56
Roosevelt street, on the opposite sidewalk, between half-past
nine and ten o'clock on the morning of Monday, October 6th,
1902. He saw three women standing in front of No. 56,
when a man came out of the doorway, whom he identified as
the defendant. The defendant " made a reach for a woman
that was standing in the crowd, and as he did so he drew a
revolver out of his hip pocket and fired two shots at her ; she
was dodging around the other women and started to run into
the shoe store right next door to No. 56, and as she was going
through the door into the place he fired three more. I never
heard of the people before. I did not know that they werd
on earth. After the second three shots were fired at the
woman as she went into the door of the cobbler's shop, I went
1903.] People v. Gaimari. 87
N. Y. Rep.] Opinion of the Court, per Vann, J.
across the street to the sidewalk where she was 6hot. I seen
her lying in there and I started back — lying in the shoe-
maker's shop, right by the casing at the windows, the
cobbler's bench there. I seen blood on the side of her
dress."
Kate Looney, who lived at No. 56 Roosevelt street, was
talking to Mrs. Petro as she was cleaning the bells by the
front door, when the defendant came down stairs and said to
the deceased, " You did this," and she said, " I didn't do it>
the landlord did it." Thereupon the defendant caught her
by the throat and commenced to shove her. The witness
thought he was fooling until she saw him pull a revolver out
of his pocket and fire three shots, when she ran into the shoe-
maker's shop, followed by the deceased, who in turn was fol-
lowed by the defendant. When the defendant went in he
fired another 6hot, and the witness observed nothing more
except that she saw him throw away the revolver. " He was
in the store when he chucked it away. He chucked it in the
back of the store." The night before, this witness heard the
defendant say to the deceased, as he passed by her at the front
door, " This is your last night of living." She further testified
that when the defendant " fired those shots at the housekeeper
he was right up at her side ; he had his hand on her when he
fired them at her in the store." When sworn before the coro-
ner she did not say that she saw the defendant throw away
tha revolver.
Angelina Granero lived at No. 56 Roosevelt street, and going
down stairs to pay her rent to Mrs. Petro saw her cleaning
the knobs of the bells by the front door. While she was
engaged in paying her rent the defendant came down stairs
and said to Mrs. Petro, " Give us the money." She replied,
"No, I wasn't going to give you no money ; if I've got to
give you any money call me to the court and don't talk to me ;
don't speak to me ; talk to my husband ; I don't want you to
be talking to me." He asked her for the money again and
she said : " Don't be doing me anything ; if you do me any-
thing I will call a policeman and make you arrested." In the
88 People v. Gaimabi. [Oct.,
Opinion of the Court, per Vann, J. [Vol. 176.
language of the witness : " From these words they started to
be lighting," and, alarmed, she turned to go when Mrs. Petro
caught hold of her dress. She next heard three shots from
behind her, the hold on her dress was relaxed and she ran
away, but looking back saw the defendant shoot again. By
fighting, the witness may have meant quarreling, for when
asked if the parties were striking at each other she answered :
" No, sir ; fighting, talking."
Louis Cairia testified that he was a shoemaker and was at
work in his shop in the front part of No. 56 Roosevelt street
at about eight or nine o'clock on the morning of the homicide.
He heard a shot and raising his head saw the defendant pur-
suing the deceased, about three feet from her and shooting at
her " in front and in the back, anywhere she turned." He
heard three shots fired outside when he ran out of his shop
and the deceased ran in followed by the defendant with a
pistol in his hand. After that the witness heard one or two
shots inside. The defendant was close to Mrs. Petro as the
witness looked up and saw the second and third shots. At
this time lie saw the defendant shoot at her in front and when
she turned he saw him shoot at her back.
Daniel A. Walsh, a collector, was walking down Roosevelt
street on the morning'in question shortly after half-past nine
o'clock. When about opposite No. 56 he heard the report of
a revolver and turning saw a woman running from the hall-
way followed by a man, whom he identified as the defendant.
She was running from him and he had his left hand on her
right shoulder. He next heard two shots in quick succession
when she turned and went into the cobbler's shop followed by
the defendant and after that he heard two more shots, making
five in all. He went into the shop and saw the woman with
blood coming from her back and a wound in her abdomen.
Her apron was burned with powder. He saw a man put his
hand on defendant and hold him until he was turned over to
the police. A few minutes later the witness picked up/ a
revolver in the air shaft at the back part of the store. Each
of the five chambers contained an empty shell and the revolver
1903.] People v. Gaimari. 89
N. Y. Rep.] Opinion of the Court, per Vann, J.
was hot when he picked it up. It was identified by several
witnesses as the one with which the shooting was done.
Three of these witnesses and two others testified that when
the defendant was arrested right after the shooting, he was
taken before Mrs. Petro, who was still living. She was asked
if he was the man who shot her. She could not speak but
nodded her head. In broken English the defendant denied
that he did the shooting.
The defendant was seized as he was " trying to get out " of
the shoe shop and held until the arresting officer came and
took him in custody. A watch, fifteen or sixteen dollars in
money and the precept to dispossess, returnable the next day,
were found upon his. person. The officer asked him why he
did it and he said he did not do it. After the revolver was
found he was asked if it was his and he said it was not.
The interne in charge of the ambulance found Mrs. Petro,
at about ten o'clock, lying on the floor of the cobbler's shop,
still conscious but suffering from shock. Her clothes were
saturated with blood and burned in two places, one in the
back just behind the right shoulder and the other in front
over the right groin. Beneath each burned spot there was a
pistol shot wound in the body. She was taken to the hospital
and died in about thirty minutes.
The physician who made the autopsy found two pistol shot
wounds, one in the back about two inches to the right of the
median line, above the right shoulder blade. The bullet
which made that wound lodged in the muscles of the back.
The other wound was in front on the right side of the body
and the bullet after penetrating the abdominal cavity passed
through the bladder and was found in the muscles on the
left side. It was of the same calibre as the revolver that was
found right after the shooting, both being number 32. The
wound in the abdomen, with the internal hemmorhage result-
ing, was, in the opinion of the physician, the cause of death.
The defendant when sworn in his own behalf denied the
occurrence testified to by the little girl Maggie, in relation to
his breaking into the room of the deceased with a revolver in
90 People v. Gaimari. [Oct.,
Opinion of the Court, per Vann, J. [Vol. 176.
his hand, and said that he never had a revolver in his posses-
sion. He also denied that lie ever threatened to kill Mrs.
Petro. He testified that on the morning in question he went
down stairs to see the owner of the building and found the
deceased and another woman. He said, " Good morning,"
and as he was passing by Mrs. Petro she said, " Come here."
As he was going toward her "she drew the revolver and I,
with a jump, grabbed hold of her hand ; when so doing two
shots fired in the air, and while I was wrenching the revolver
from her hand the revolver went off ; in that moment I lost
my hat, and while I was picking up my hat from the ground
she ran away, and I myself tried to get away and entered the
shoe store where I saw her — I met her ; she grabbed hold of
me and I put my arms around her, and seeing that she was
fainting I put her in a chair. I never supposed in that
moment that she was wounded. Then the policeman came up
and I was arrested, without any resistance." He did not
intend to shoot her. He had heard that Mrs. Petro had made
a threat against his life, and believed he was in danger of his
life. He gave her his salary every week, " because from the
first day that she got affectionate with me, she didn't want me to
give the money to my wife." He did not go to work that day
because he wanted to know from his landlord " what for he
dispossessed me, when I had paid up everything."
He further testified that when Mrs. Petro drew the revol-
ver she pointed it at him, being about three and one-half feet
away. He grabbed her right hand and held it up, when two
shots went off in the air, and while he was wrenching her hand
to get the revolver away " three shots went off." The rec-
ord then continues as follows : " By the court : Ask him if
he wrenched the revolver from her and if he succeeded in
getting it away from her. A. Yes, I succeeded. Q. What
did he do with the revolver afterward ? A. She was holding
me around my body and I fired the revolver ; I shot the
revolver. Q. Now when did you fire the revolver ? A. After
the shots went off and she had clasped her hands around my body
and did not want to leave the revolver go. * * * I fired
1903.] People v. Gaimari. 91
N. Y. Rep.] Opinion of the Court, per Vann, J.
it at nobody. I wanted to unload it in order to prevent her
from doing harm to me. * * * The revolver dropped
on the sidewalk, and since that time I didn't see it any more.
* * * I didn't see her enter the shoe store. Q. Well,
you went into the cobbler shop yourself, didn't you ? A. Yes,
for fear she had some other weapon, because she always had
a knife with her. * * * By the Fifth Juror : Q. I would
like to know in what direction you fired these shots ; how you
held the revolver when you fired these two or three shots ?
A. I could not say that because of the position in which she
held it, clasping around her arms. I tried to shoot to the
ground. I didn't want to shoot at her."
Julia Osnato testified that about eight o'clock on the morn-
ing of the homicide she told the deceased that the defendant
and his wife were going away. She replied that if they were
going away she would kill them both. The witness did not
tell the defendant this, but told his wife.
The defendant's wife testified that he never carried a revolver.
At about half-past nine on the morning of the homicide " my
boy commenced to cry for his father and I opened the window
and allowed him to see his father and then I saw the house-
keeper and my husband was talking both together, * * *
near the door of the house. I noticed that they were quar-
reling together, and I from the window hollered to my hus-
band, saying that he had better leave her alone. Then I
saw that the woman drew a revolver and pointed it and that
my husband went against her to stop her." She started to
run down stairs and on the way heard shots ring out. She
was agitated and trembling, and when she reached the side-
walk the police had arrived. She also said that the deceased
had threatened " all the time " to destroy both her husband
and herself, and that she told him so. She lived on the fifth
floor of the building, and whatever she saw was from a win-
dow at that elevation.
Guiseppe Alzerana testified that on the morning of the
homicide he was out selling bread, and when near No. 56
Roosevelt street saw a man and woman quarreling. She took
92 Pkople v. Gaimari. [Oct,
Opinion of the Court, per Vann, J. [Vol. 176.
a revolver from her dress, the man came against her and the
witness ran away, but heard the shooting immediately.
Several witnesses, one a brother-in-law of the defendant,
testified that his reputation for peace and quietude was good.
Evidence was given by his employer in Jersey City that the
defendant worked every day and all day during the latter part
of September and the fore part of October, which covered the
period when the daughter of the deceased said that he came to
their family rooms with a revolver.
In rebuttal, another daughter of the deceased, fifteen years
of age, testified that she did not know of her mother having a
pistol. The husband of the deceased said he had lived with
her nineteen years and never knew her to have a revolver.
These are the salient facts sworn to by the various witnesses.
According to the theory of the defendant he made no threats,
had no revolver and used no violence until the deceased wan-
tonly attacked him. He claims that she had threatened his
life and was the aggressor ; that she was superior to him in
size and strength ; that as he was passing by her on his own
business she called him to her, drew a revolver from her bosom
and was about to shoot him, when, apprehending that his life
was in danger, he wrenched the weapon from her and as he
did so it went off, accidentally so far as he was concerned ;
that after that, with his arms still around her, he fired the
revolver so as to unload it; that he did not intend to shoot
her but tried to shoot toward the ground and that all he did
was in lawful self defense. His theory finds some corrobora-
tion in the testimony of other witnesses.
On the other hand, the People claim that the defendant had
twice threatened to take the life of Mrs. Petro ; that while
she was peacefully engaged in attending to her ordinary duties
the defendant either accused her of doing something which
she denied, or he asked her for money ; that both of these
statements may have been made, as the evidence does not
exclude either ; that without provocation or warning he drew
a revolver from his pocket and fired at her five times as she
was fleeing from him ; that after three shots had been fired
f
1903.] Pkoplb v. Gaimari. 93
K . Y. Rep.] Opinion of the Court, per Vann, J.
she ran into the shoe shop and he followed her, although he
might then have run away if he was afraid of his life ; that
according to his own statement, when trying to escape from
danger he tried to pick up his hat ; that if in fear of his life
he could have sought protection in the police station but 150
feet away, but instead he followed her into the shoe shop and
shot at her twice there, where she was soon found in a dying
condition with one wound in her back and another in her
abdomen.
It is argued that the defendant shot Mrs. Petro, for no one
else was seen to shoot her and she could not have shot herself
in the back. The People claim that he shot her with a deliber-
ate and premeditated design to take her life and that all the
circumstances tend to show that he was the aggressor from the
outset and executed the threats which he had repeatedly made.
While the defendant claims that the homicide was acci-
dental and hence excusable, or in self-defense and hence jus-
tifiable, the People insist that these defenses are inconsistent.
He clearly had the right to rely on inconsistent defenses, but
it is significant that only one could rest on truth. Either
defense makes motive important, and, while no motive to
murder can be adequate, still it may be obvious. Service of
the precept to dispossess and the statement of the defendant
to Mrs. Petro that she caused it, as sworn to by Mrs. Looney,
are relied upon by the People to establish a motive; while
threats made by the defendant to kill Mrs. Petro and by her
to kill him and his wife are relied upon by both parties.
• The defendant and his wife testified that he never had a
revolver and several of his witnesses said that Mrs. Petro
drew the revolver in question from her bosom. On the other
hand, the husband and the daughter of the deceased say that
she never had a revolver. Another daughter said that a few
days before the homicide the defendant had a revolver and
threatened to use it upon her mother, while two witnesses for
the People testified that they saw the defendant draw the
revolver from his pocket and shoot five times at Mrs. Petro.
The defendant swore that he wrenched the revolver from the
j
94 People v. Gaimari. [Oct.,*
Opinion of the Court, per Vann, J. [Vol. 176.
deceased, dropped it on the sidewalk and that he did not see
it afterward. A witness for the People testified that she saw
him throw away the revolver, after the shooting, in the back
part of the shoe shop and several witnesses swore to the find-
ing of the revolver in the air shaft at the rear of the shop, and
one that it was then hot, with five empty shells in it. The
People further claim that the statement of the defendant's
wife, that she saw what she testified to while holding her little
boy out of the fifth story window so that he could see his
father on the sidewalk, is too improbable for belief.
It is unnecessary to review the case, upon the merits, at
greater length, for enough has been said to show that the
question as to the defendant's guilt, as to the grade of his
offense if he was guilty, as to his claim that he acted in self-
defense or that the homicide was the result of accident, were
for the jury. They could look into the faces of the various
witnesses as they gave their versions of the transaction and
decide, 60 far as human judgment can tell, not only who
intended to speak the truth, but who in fact spoke the truth.
Representing the average judgment of mankind, they could
separate the true from the false with a degree of accuracy
which, according to the theory of our law founded on the
experience of many generations, cannot be attained by review-
ing judges. The memory, motive, mental capacity, accuracy
of observation and statement, truthfulness and other tests of
the reliability of witnesses can be passed upon with greater
safety by those who see and hear than by those who simply
read the printed narrative. •
Clearly the case was for the jury to decide and we cannot
say that their verdict was against the weight of evidence or
against law or that justice requires a new trial.
The exceptions are few and unimportant. The defendant
moved to strike out the testimony of Kate Looney and Maggie
Santa Petro in relation to the threats of the defendant to kill
the deceased made a short time before the homicide on the
ground that it was immaterial and incompetent, but the
motion was denied and an exception was taken.
J903.] People v. Gaimari. 95
N. Y. Rep.] Opinion of the Court, per Vann, J.
For time out of mind recent threats have been held compe-
tent to show the state of the defendant's mind toward the
deceased. (La Beau v. People, 34 N. Y. 222, 229, 232;
Archibald's C. P. 283 ; Wharton's Crim. Ev. [9th ed.] § 756.)
They are of special importance when the accused claims that
the homicide was excusable or justifiable. Although clearly
competent they should be considered with caution, for many
an idle threat is made, and words spoken under excitement are
liable to be misunderstood.
The defendant was not allowed to show specific acts of
violence alleged to liave been committed by the deceased
upon his wife, no offer haviug been made to prove that he
knew of them. We find no error in this ruling. When the
accused claims that he acted in self-defense, it is competent
to show the general reputation of the deceased for violence,
but evidence of specific acts toward a third person, espe-
cially when it does not appear that the defendant had heard
of it, is inadmissible. (People v. Druse, 103 N". Y. 655,
656 ; Thomas v. Peopfy 67 N. Y. 218 ; Eggler v. People,
56 N. Y. 643 ; People v. Lamb, 2 Keyes, 360-371.)
As was said by Judge Earl in Thomas v. People (supra) :
" There is no authority for holding that proof of specific acts
of violence upon other persons, no part of the res gestrn and
in no way connected with the prisoner, is competent."
We have considered the other exceptions, but find none
which merit the expression of reasons for holding that they
raise no error.
No exception was taken to the charge. The court charged
each of the fourteen requests presented by the learned counsel
for the defendant, including the following : " That use of
force or violence upon or toward the person of another is not
unlawful when committed by the party about to be injured,
if the force or violence used is not more than sufficient to
prevent such offense." In the body of his charge the learned
trial judge said to the jury : " On the main defense offered in
behalf of the defendant — justifiable homicide — I will read
you the law and you will see whether it properly applies.
96 People v. Gaimaki. [Oct.,
Opinion of the Court, per Vann, J. [Vol. 176.
In the Penal Code it is enacted that 4 to use, or attempt or
offer to use, force or violence upon or toward the person of
another is not unlawful when committed by a party about to
be injured, or by another person in his aid or defense, in pre-
venting or attempting to prevent an offense against his per-
son, if the force or violence is not more than sufficient to pre-
vent such offense.5 " The learned trial judge thus inadvert-
ently read from section 223 of the Penal Code, which relates
to the use of force or violence to prevent an assault. (Penal
Cede, § 223, par. 3.) lie doubtless intended to read section
205, which relates to justifiable homicide and lays down a
more stringent rule in relation to the use of violence resulting
in homicide, by limiting it to an occasion " when there is
reasonable ground to apprehend a design on the part of the
person slain to commit a felony, or to do some great personal
injury to the slayer, * * * and there is imminent danger
of such design being accomplished." Thus the charge was
more favorable to the defendant than he was entitled to.
The effect of the charge was that if the defendant thought he
was about to be injured by Mrs. Petro he had a right to tajce
her life, which was erroneous, but the error injured the Peo-
ple and benefited the defendant.
The learned judge, however, further instructed the jury
that they were " to determine from the testimony whether
this defendant Lad good and reasonable grounds to believe
that he was in danger of his life, or of grievous bodily injury,
and whether what occurred after he had wrested this pistol
from the hands of the deceased and had it in his possession,
was more than sufficient force to avert the danger that he
apprehended. From the plain wording of the statute you
will see that it applies only where a party is about to be
injured." This was a nearer approach to the correct rule, and
it is obvious that there is nothing in the charge upon the sub-
ject of justifiable homicide of which the defendant has a right
to complain, for it was not only too lenient toward him, but
it was in accordance with the request of his own counsel.
After carefully considering this case and every error alleged,
1903.] Baer v. McCullouoh. 97
N. Y. Rep.] Statement of case.
whether raised by an exception or not, we find nothing that
should disturb the verdict, and the judgment pronounced
against the defendant must be affirmed.
The judgment and orders should be, affirmed.
Parker, Ch. J., Gray, IIaight, Cullen and Werner, J J.,
concur ; Martin, J., absent.
Judgment of conviction affirmed.
Elias Baer, as Executor of George Baer, Deceased, Respond-
ent, v. John G. McCullouoh et al., as Receivers of The
New York, Lake Erie and Western Railroad Company,
% Appellants.
1. Practice — Continuance of Action in State Court against
Receivers Appointed by Federal Court after Their Discharge —
Code Civ. Pro. § 756. An action against railroad receivers appointed by
a federal court brought in the Supreme Court of the state of New York
under the Revised Statutes of the United States, authorizing the bringing of
actions without previous leave of the court against a receiver appointed by a
federal court in respect to any act or transaction of his in carrying on the
business connected with the property, is not necessarily terminated as
to them by their subsequent discharge and the transfer of the property
pursuant to a decree of foreclosure and sale made by the federal court,
and the plaintiff is not obliged to substitute the purchaser thereunder as
defendant before proceeding to judgment; under section 756 of the Code
of Civil Procedure, in case of a devolution of liability, the court may sub-
stitute the party upon whom the liability is devolved, but when it does
not, the action is properly continued against the original parties.
2. Same. The fact that the statute authorizing the bringing of the
action contains the provision, " But such suit shall be subject to the gen-
eral equity jurisdiction of the court in which such receiver was
appointed," does not require the discontinuance of the action against the
receivers after their discharge, upon the ground that the federal court
having provided by the decree a method for establishing claims against
the fund that was in the hands of the receivers, that method is exclusive;
since Congress intended to permit claims to be established through the
ordinary local judicial machinery, although their payment must be decreed
by the federal court alone, especially in a case where the decree makes no
provision that the method therein provided is exclusive and assures all
the creditors that their claims, whether established or not at the time of
the sale of the property, shall be paid.
7
98 Baer v. McCullocgh. [Oct.,
Statement of case. [Vol. 176.
3. Evidence — Competency op Tax Deed. Under section 132 of the
Tax Law (L. 1896, ch. 908) a tax deed executed by a county treasurer,
which has for two years been recorded in the office of the clerk of the
county in which the lands conveyed thereby are located, is admissible in
evidence without proof of the regularity of the proceedings upon which
it is based.
Baer v. McCullough, 72 App. Div. 628, affirmed.
(Argued June 24, 1903; decided October 6, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the third judicial department, entered May
27, 1902, affirming a judgment in favor of plaintiff entered
upon a verdict and an order denying a motion for a new trial.
The nature of the action and the facts, so far as material,
are stated in the opinion.
Henry Bacon and Joseph Merritt for appellants. The
exception to the admission of the tax deed in evidence was
well taken. {Gardner v. Heart, 1 N. Y. 528 ; Van Inwegen
v. P. J., etc., R. R. Co.) 34 App. Div. 95 ; Sinclair v. Field,
8 Cow. 543 ; Beekman v. Bigham, 5 N. Y. 366 ; Thomp-
son v. Burhans, 61 N. Y. 52 : People v. Turner, 117 N. Y.
227.) It was not competent for the Supreme Court of the
state of New York to continue or to permit the continuance
of any action against the defendants as receivers appointed by
the Circuit Court of the United States after that court had
terminated the receivership and removed and discharged them
as such receivers. (1 U. S. R. S. Supp. 614, § 3 ; F. L. cfc T
Co. v. I. C. R. R. Co., 2 McC. [U. S.] 181 ; Jessup v. TF.%
etc., R. R. Co., 44 Fed. Rep. 663 ; Thompson v. 31. P. R. It\
Co., 93 Fed. Rep. 384 ; De Groot v. Jay, 30 Barb. 483 ; Hig-
gins v. Wright, 43 Barb. 461 ; Taylor v. Baldwin, 14 Abb.
Pr. 166 ; James v. J. C. Co., 8 N. Y. S. R. 490 ; Peale v.
Phipps, 14 How. [U. S.] 368 ; Barton v. Barbour, 104 U. S.
126 ; Herring v. iT. Y., L. F. & W. R. R. Co., 105 N. Y.
340.)
Frank S. Anderson and John F. Anderson for respondent.
The exception to the admission of the tax deed in evidence
was not well taken. (L. 1896, ch. 908, § 132; People v.
1903.] Baek v. McCullough. 99
N. Y. Rep.] Opinion of the Court, per Parker, Ch'. J.
Turner, 117 N. Y. 227.) The defendants not having had the
Erie Railroad Company substituted in their stead, the case
properly proceeds against the original parties. (Hegewisch v.
Silver, 140 N. Y. 414.)
Parker, Ch. J. While defendants were receivers of the
property of the New York, Lake Erie and Western Railroad
Company they allowed an accumulation of inflammable mate-
rial upon its property and near its tracks, which was set fire
by sparks from a locomotive. The fire spread to the adjoin-
ing property of plaintiff, occasioning him substantial damage.
The accumulation of combustible material was in violation of
statute, and tho jury found defendants guilty of negligence,
and fixed the damages at a sum for which judgment was
entered, with costs, and subsequently affirmed by the Appel-
late Division.
It is urged in this court, as it was in the courts below, that,
inasmuch as there is no personal liability on the part of the
receivers, it was error to deny defendants' motion upon the
opening of the trial, that the court proceed no further with
the action because defendants were no longer receivers, hav-
ing discharged the duties of their trust, and been discharged
by the court after a sale of the property pursuant to decree.
As the learned counsel for defendants now states it, the
receivers having terminated their receivership, any action or
legal proceeding against them was necessarily terminated,
and it was not competent for the Supreme Court of the State
of New York to continue or permit the continuance of any
action against defendants as receivers appointed by the Cir-
cuit Court of the United States after that court had termi-
nated the receivership and discharged them.
The action was brought against defendants while they were
receivers, and in full possession of the property, and it was
properly brought under that provision of the Revised Stat-
utes of the United States which authorizes the bringing of
actions, without previous leave of the court, against a receiver
appointed by a federal court in respect to any act or transac-
100 13aer v. McCullouoh. [Oct,
Opinion of the Court, per Parker, Ch. J. [Vol. 176.
tion of his in carrying on the business connected with such
property.
After the action was at issue but before trial the railroad
property was sold pursuant to a decree of foreclosure and
sale. But such decree expressly provided that "The pur-
chaser or purchasers shall as part consideration and purchase
price of the property purchased, and in addition to the sum
bid, take the same and receive the deed therefor upon the
express condition that he or they or his or their successors or
assigns, shall pay, satisfy and discharge any unpaid compen-
sation which shall be allowed by the court to the receivers
and any indebtedness and obligations or liabilities which shall
have been contracted or incurred by the receivers or which
may be contracted or incurred by the receivers before the
delivery of the possession of the property sold, whether or
not represented by certificates hereinafter issued, and also
any indebtedness or liabilities contracted or incurred by said
defendant railroad company in the operation of its railroad
prior to the appointment of the receivers * * *."
In pursuance of such sale the property was conveyed to the
Erie railroad on November 14, 1895, and, necessarily, came
to it burdened with the obligation imposed by the decree, to
pay any judgment finally rendered in the action in favor of
plaintiff. The Supreme Court would undoubtedly have sub-
stituted it in the place of the receivers had it made a motion
to that end, and it may well be that had the receivers moved
for a substitution of the Erie railroad it would have been
granted ; but the Erie railroad did not demand a substitution,
to the end that it might the better protect its rights, nor did
the receivers seek to relieve themselves of the burden of mak-
ing a contest which, if successful, would result in a benefit to
the Erie railroad, and, if unsuccessful, in an addition to its
financial responsibilities.
One question, therefore, is, was plaintiff bound to bring
about a substitution before he could proceed to judgment ?
The answer to that question is furnished by section 756 of
the Code of Procedure, which provides that " In case of a trans-
1903.] Baer v. McCullouoii. 101
N. Y. Rep.] Opinion of the Court, per Parker, Ch. J.
fer of* interest, or devolution of liability, the action may be
continued by or against the original party ; unless the court
directs the person, to whom the interest is transferred, or upon
whom the liability is devolved, to be substituted in the action,
or joined with the original party, as the case requires." In
this case the taking title to the railroad property by the Erie
railroad under the decree of foreclosure operated as " a devolu-
tion of liability " upon the railroad for all valid claims against
the receivers, whether growing out of contract obligations or
negligence in the operation of the railroad. Hence it was
proper, under that section, for plaintiff to proceed to judg-
ment against the receivers, in view of the fact that the court
did not cause the Erie railroad to be substituted in the action.
This judgment, while in form one against the receivers, estab-
lishes such a liability as the Erie railroad has agreed to pay,
and its agreement may be enforced by the federal court, if
need be, for that court not only provided in its decree that the
purchaser of the property should take title subject to all the
obligations or liabilities of the receivers, but by the same
decree reserved the right to enforce the payment of all such
obligations in the event of the purchasers refusing to make
payment after demand.
The cases cited as tending to establish a different practice
are Herring v. N. Y., L. E. & W. JR. R. Co. (105 N. Y.
340) and N. Y. <b W. U. Tel. Co. v. Jewett (115 N. Y.166).
In Herring* s case the action was commenced after the dis-
charge of the receiver, while in Jewettfs case it does not
appear that the court had by the decree reserved the right to
enforce the payment of the obligations of the receiver against
the purchasers of the property. In Thompson v. Northern
Pac. Jiy. Co. (93 Fed. Rep. 384) the action was commenced
after the receiver was discharged, and it is held that under a
decree like the one in the case at bar a purchaser is a proper
party defendant to an action on such a claim, being entitled
to defend, and that in an action commenced after the prop-
erty has been conveyed to it, and the receivers have been dis-
charged, it might properly be made sole defendant. In that
case defendant, the purchaser of the road at foreclosure sale,
102 • Baer v. McCullouoh. [Oct.,
Opinion of the Court, per Parker, Ch. J . [Vol. 176.
objected to being made defendant, although the action was
commenced after the receivers had been discharged. The
trial court was of the opinion that its objection was well
made and dismissed the complaint, but on the review it was
held that, under the peculiar circumstances of that case, the
receivers having passed out of existence, officially, before the
action was begun, it was proper to commence it against the
party upon which liability had devolved by reason of the terms
of the decree of foreclosure and its purchase thereunder.
But it is unnecessary to examine, for the purpose of distin-
guishing, cases in the Federal courts, for this cause of action
did not abate upon the discharge of the receivers, but con-
tinued ; and the practice to be followed by the courts of this
state, having jurisdiction of the original parties and of the cause
of action, is provided by the legislation of this state, which, as
we have seen, is to the effect that the action may continue
against the receivers unless the court directs the person upon
whom the liability has devolved to be substituted. The court
did not so direct, as it probably would have done had the Erie
railroad asked it, and so the plaintiff had the authority of our
statute to proceed to judgment against the receivers.
The defendants make the further point that, assuming that
the practice followed in this case would have been proper had
the decree of foreclosure been made by the Supreme Court of
this state, it furnishes no precedent for the conduct of that
court in this case inasmuch as the decree was made by a federal
court, and in such case our courts should refuse to lend aid to
establish a claim against the fund after the discharge of the
receivers, although the action brought for that purpose was
pending at the time of such discharge. As we understand the
claim of the learned counsel for defendants, our court should
have said to plaintiff, True, the statutes of the United States in
terms authorized you to commence the action in this court
without the consent of the federal court, but notwithstanding
that authorization your action must fail because the federal
court has seen fit since its commencement to discharge the
receivers, and has provided a method for establishing claims
against the fund that was in the hands of the receivers.
1903.] Baer v. McCdllouoh. 103
N. Y. Rep.] Opinion of the Court, per Parker, Ch. J.
^ ■ ■
This contention is mainly founded upon a clause in the pro-
vision of the statute already referred to authorizing the com-
mencement of a suit without leave of the federal court,
which reads, " but such suit shall be subject to the general
•equity jurisdiction of the court in which such receiver was
Appointed." It would be unfortunate, indeed, if two juris-
dictions, both within the same territory, should work so inhar-
moniously, burdening the citizen with two litigations where
one should suffice, and producing that multiplicity of actions
which is abhorrent to the law, a result which the judges of
•each jurisdiction charged with the responsibility of adminis-
tering the law 60 that its burdens shall rest as lightly as pos-
sible upon litigants will find a way to avoid unless prevented
by the commands of a statute.
We find no decision construing the provisions of the statute
last quoted in the light of a situation such as this, and are,
therefore, unrestrained by authority from giving to it such
a construction as in our judgment it requires. Clearly, the
statute indicates that it was a part of the congressional scheme
that the appointment of receivers of great corporations — in
the case of railroads, covering hundreds and sometimes thou-
sands of miles, with property extending through many differ-
ent counties and states — should not operate to prevent par-
ties having claims against such corporations, or against the
receivers thereof, from proceeding in the courts of the neigh-
borhood precisely as they could have done when the corpora-
tion was managing the property. And to save the citizen
unnecessary expense, and the more surely to protect him in
his rights, it provided, in effect, that the right to bring the
action should not depend upon the will of the court appointing
the receivers, and so could be brought without the consent of
such court. But while Congress intended to permit the estab-
lishment of claims against the fund in the hands of the receiv-
ers to take place through the ordinary local judicial machinery,
it could not, of course, tolerate an attempt on the part of such
courts to take possession of so much of the fund or property
in the hands of the receivers as would be necessary to the sat-
j
104 Bakr v. McCullough. [Oct.,
Opinion of the Court, per Parker, Ch. J. [Vol. 176.
isfaction of the claims. Only one court could be permitted to
operate the property, marshal the assets, decree a sale and
provide for the distribution of the assets among those entitled
thereto, and hence it was deemed necessary to establish the
boundary line beyond which state courts could not go. Such
a construction is in harmony with the decree made by the
federal court in this case. True, it provided for a method by
which claims against the fund could be ascertained, but it did
not provide that such method was exclusive, nor do we think
it could have so provided in view of the language of the stat-
ute authorizing the commencement of suits without its con-
sent, for if it could take to itself exclusive jurisdiction to
establish claims against the fund by decree made at the close
of the litigation, it could also do it at the outset of the litiga-
tion, and in such case the authority conferred by statute upon
other courts to take jurisdiction of actions brought against the
receivers would be without effect, and, of course, the statute
cannot thus be brushed aside.
The decree of the federal court in this case was made on
broader lines — lines more convenient for the litigant and in
harmony with the statute. It assured the creditor that his
claim, whether established or not at the time of the sale of
the property, should be paid and it did not attempt to take
from him the right, plainly given him by the statute, to
select the court most convenient to him, and it reserved to the
federal court, in the interest of all the creditors, the right to
proceed at the foot of the decree to make 6iich further order
as might be necessary to carve out of the property or take from
the fund such sum as should be necessary to satisfy all claims
established through the proper legal machinery provided
either by the state or the federal government in the event
that the purchaser of the property, the Erie Railroad Com-
pany, should fail to pay such claims.
Exception was also taken to the admission in evidence of
a tax deed upon which plaintiff relies to establish his title.
The objection made was that the deed, executed by the
county treasurer of Sullivan county in his official capacity,
1908.] Baer v. McCullough. 105
N. Y. ftep.] Opinion of the Court, per Parker, Ch. J.
was not admissible or competent to prove title without proof
of such proceedings as authorized him to make the sale and
make the conveyance ; and defendants invoke the rule of law
that where a deed is made by a public officer or by any person
under a naked power uncoupled with an interest it is not
admissible in evidence without proof of the facts which show
the power and the right to exercise it, citing in support
thereof Sinclair v. Jackson (8 Cow. 543) ; Beekman v. Bigham
(5 N. Y. 366) and Ttwmpson v. Burhans (61 N. Y. 52).
They concede that by chapter 194 of the Laws of 1878 it
was provided that every conveyance made by the county
treasurer under such act should be presumptive evidence that
the sale was regular and that all the previous proceedings were
regular according to the provisions of this act, and also that
by chapter 594 of the Laws of 1886, amending said section 8,
it was further provided that such a deed should be conclusive
evidence that the sale and all proceedings subsequent and
prior thereto, including the assessment of the land, were regu-
lar and valid, but urge that both of those acts were repealed
by chapter 218 of the Laws of 1888, and, hepce, it was neces-
sary for the plaintiff to establish the facts authorizing the
execution of the deed so as to bring the case within the rule
of the authorities cited.
This argument overlooks section 132 of the Tax Law (Ch.
908, Laws 1896) which provides that " Every such convey-
ance heretofore executed by the comptroller, county treasurer
or county judge and all conveyances of the same lands by his
grantee or grantees therein named, which have for two years
been recorded in the office of the clerk of the county in which
the lands conveyed thereby are located . * * * shall be
conclusive evidence that the sale and proceedings prior thereto,
from and including the assessment of the lands, and all notices
required by law to be given previous to the expiration of the
time allowed for redemption, were regular and were regularly
given, published and served according to the provisions of all
laws directing and requiring the same or in any manner relating
thereto. * * *"
106 Adams v. El wood. [Oct.,
Statement of case. [Vol; 176.
Before this court in People v. Turner (117 N. Y. 227) it
was argued that a similar statute was unconstitutional, but it
was held that the effect of the statute was to change the rule
of evidence as it existed at common law, and also to vary the
existing rules relating to the limitation of time for the com-
mencement of legal proceedings which is within the power of
the legislature, and, therefore, the act was valid.
This provision of the Tax Law, the validity of which is
sustained by People v. Turnei^ fully justifies the ruling of
the trial court in admitting the deed in evidence without proof
of the regularity of the proceedings upon which it was based.
The judgment should be affirmed, with costs.
O'Brien, Bartlett, Vann, Cullen and Werner, JJ., con-
cur ; Martin, J., absent.
Judgment affirmed.
Mary Ann Adams et al., as Executors of Walter Adams,
Deceased, Respondents, v. George Elwood, Appellant.
1. Appeal. RuKngs upon a trial, even if erroneous, unless of sufficient
importance, will not justify the reversal of a judgment.
2. Same. An objection to evidence upon which a ruling is reserved,
but not made, must be treated as though it had been sustained and an
exception taken.
3. Evidence. Where, upon the trial of an action for an accounting,
an alleged incorrectness of an inventory may have been a competent and
material fact, a question simply calling upon the defendant to state
whether he had explained the mistakes therein to one of the plaintiffs is
properly excluded in the absence of some statement or admission on their
part that would be binding upon them.
4. Judicial Notice. An objection that a referee in an action for an
accounting was disqualified because at the time of his appointment he was
the county judge of a county having more than 120,000 inhabitants (Const,
art. 6, § 20), cannot be sustained by the Court of Appeals where the last
public record preceding his appointment shows the population to have
been less than 120,000, although in fact it may have been more at the
time, since in such a case that court can take judicial notice of nothing
but facts authenticated by the public records.
Adams v. Elwood, 61 App. Div. 622; 72 App. Div. 632, affirmed.
(Argued June 25, 1903; decided October 6, 1903.)
1903.] Adams v. Elwood. 107
N. Y. Rep.] Opinion of the Court, per Wernek, J.
Appeal from a judgment of the Appellate Division of the
Supreme Court in ths second judicial department, entered
June 4, 1902, affirming a judgment in favor of plaintiffs
entered upon the report of a referee ; also from an order of
said Appellate Division, entered May 31, 1901, affirming an
order of Special Term denying a motion to vacate the order
of reference.
The nature of the action and the facts, so far as material,
are stated in the opinion.
William Z. Mathot for appellant. The referee committed
errors in the exclusion of testimony prejudicial to the appel-
lant, (fferzfeld v. lieinach, 44 App. Div. 326 ; Sharpe v.
Freeman, 45 N. Y. 802 ; Lathrop v. Bramhall, 64 N. Y.
365.) The order of reference, the reference, the report and
the judgment entered upon it are wholly void, by reason of
the referee's disqualification. (Const. N. Y. art. 6, § 20 ;
Shaw v. Tobias, 3 K Y. 188 ; 1 Greenl. on Ev. § 6 ; Chap-
man v. Wilbur, 6 Hill, 475 ; Farley v. McDonnell, 7 Lans.
428 ; Matter of Jacobs, 98 N. Y. 98 ; Sentenis v. Ladew,
140 K Y. 463 ; Oakley v. AspinwaU, 3 N. Y. 547; Matter
of Bingham, 127 N. Y. 296; Van Arsdale v. King, 152
N. Y. 69 ; Duryea v. Traphagcn, 84 N. Y. 652 ; French v.
Merrill, 27 App. Div. 612.)
R. J. Shadbolt and James M. Seaman for respondents.
Jhe objections now raised by the defendant as to the jurisdic-
tion of the referee are untenable. {Blake v. Lyon, 77 N. Y.
626 ; 23 App. Div. 86 ; Sentenis v. Ladew, 140 N. Y. 466.)
Werner, J. This action was brought to compel a surviv-
ing partner to render an accounting. Plaintiffs' testator and
the defendant had for many years been partners in a botanical
drug business in the city of New York, when the firm was dis-
solved on the 1st day of March, 1895, by the death of Walter
Adams, one of the partners. The action was tried before a
referee. The complaint alleges, and the referee has found,
108 Adams v. Elwood. [Oct.,
Opinion of the Court, per Werner, J. [Vol. 176.
that after the death of Adams the defendant Elwood continued
the business down to the time of the commencement of this
action in December, 1899, and refused to wind up the part-
nership affairs, or to render an account although he was asked
to do so by the plaintiffs.
Defendant's answer sets forth an alleged agreement between
the plaintiffs and the defendant, under which the latter
claimed the right to continue the business for the benefit of
all concerned, he to receive a compensation of one thousand
dollars per year for his services, after which the plaintiffs
were to have the right to withdraw the proportionate interest
in the profits to which their testator's estate should be entitled,
besides such portions of the capital as should from time to
time be agreed upon. The plaintiffs denied the existence of
the alleged agreement and the referee has found that the
defendant has failed to establish it. The referee has further
found that the interest in 6aid firm of plaintiffs' testator at the
time of his death was $7,927.03, upon which the defendant
has paid $5,588.55, leaving a balance due of $2,338.48, which
with interest amounting to $1,325.75, entitles the plaintiffs to
judgment against the defendant for $3,6G4.23.
The judgment entered upon the referee's report having
been unanimously affirmed at the Appellate Division, the case
is now before this court subject to the constitutional and
statutory limitations under which every question of fact is
conclusively deemed to have been resolved in favor of the
plaintiffs in the courts below. This leaves for review nothing
but the exceptions to the rulings of the referee, and the
appeal from the order denying defendant's motion to vacate
the order of reference, which is brought up with the main
appeal under the provisions of section 1316 of the Code of
Civil Procedure.
Only three exceptions to the rulings of the referee are dis-
cussed by the learned counsel for the appellant. Two of them
relate to the question of value of fixtures and merchandise,
and the third refers to alleged errors in an inventory made by
the defendant and which he claimed to have explained to one
1903.] Adams v. Elwood. 109
N. Y. Rep.] Opinion of the Court, per Werner, J.
of the plaintiffs. The rulings upon questions of value refer-
red to were clearly right but, even if it were conceded that
they were erroneous, they are not of sufficient importance to
justify a reversal of the judgment. When the defendant wa6
asked if he had explained to the plaintiffs the alleged errors
in the inventory, the question was objected to as incompetent,
irrelevant and immaterial ; that the defendant was incom-
petent to testify to the value of the fixtures ; and he was
bound by the inventory as* it was made by himself, January,
1895, and approved by his partner, Mr. Adams, during his
lifetime. The referee reserved his decision upon this objec:
tion, and no ruling thereon was subsequently made, so that it
must now be treated as though it had been sustained and
an exception taken. {Lathrojp v. Bramhall, 6± ST. Y.
365.)
This view of the matter does not help the appellant, how-
ever, for we think the ruling was right. The question was
irrelevant and immaterial. The alleged incorrectness of the
inventory may have been a competent and material fact for
the consideration of the referee, but the excluded question
simply called upon the witness to state whether he had
explained the mistakes therein to one of the plaintiffs. It
was not claimed or suggested that the plaintiff to whom the
explanation is said to have been made, admitted anything in
the light of, or in connection with, defendant's explanation,
and in the absence of some statement or admission on the part
of the plaintiffs that would be binding upon them, the naked
explanation of the defendant, even if admitted in evidence,
would have contained nothing material to the issue.
The referee in the case was the county judge of Queens
county, having been elected to that office in November, 1897.
He was appointed referee by an order entered April 10th,
1900. His report was dated October 31st, 1900. On the
21st day of March, 1901, the defendant made a motion at
Special Term to vacate the order of reference, the referee's
report, the judgment entered thereon and all other proceed-
ings in the action subsequent to the order of reference, on
110 Adams v. Elwood. [Oct.,
Opinion of the Court, per Werner, J. [Vol. 1T6.
the ground that the court had no jurisdiction to appoint as
referee any person holding the office of county judge in a
county having more than 120,000 inhabitants, (Art. 6, sec.
20, State Const.) This motion was denied and the order
entered upon that decision was affirmed at the Appellate
Division. The appeal from that order is now before this
court by virtue of the specification in the defendant's notice
of appeal, that he will seek to have the order reviewed on the
main appeal.
This branch of the case can also be very briefly disposed
" of. If the contention of the defendant as to the population
of Queens county rests upon a question of fact, the adverse
decision of the courts below is conclusive upon him in this
court. If, on the other hand, the inquiry involves facts of
judicial cognizance, then we must refer to the data in exist-
ence at the time when the referee herein was appointed. The
order of reference is dated April 10th, 1900. The federal
census of that year was not taken until June, and the figures
relating thereto were not obtainable until later. The last
enumeration of the inhabitants of the state prior to April,
1900, was that of 1892 which fixed the population of Queens
county at 141,807. From these figures must be deducted the
population of the towns of Hempstead, North Hempstead and
Oyster Bay, which in 1899 were erected into the present
county of Nassau, and which in 1892 had a population of
47,604. Deducting the population of these three towns in
1892, from the total population of Queens county in the same
year, leaves to the latter county in 1892 a population of
94,203. It is probably true that there was a steady increase
in the population of Queens county in all the years from 1892
to 1900, but it may be equally true that the growtli of popu-
lation may have been principally in the towns now forming
Nassau county. There may be a moral certainty that the popu-
lation of Queens county in 1900 exceeded 120,000, but in this
matter we can take judicial notice of nothing but facts
authenticated by public records. The last public record pre-
ceding the appointment of the referee herein is that of 1892.
1903.] Hicks v. Monarch Cycle Mfg. Co. 1 1 1
N. T. Rep.] Statement of case.
According to that record the population of Queens county
was less than 120,000, and the contention of the appellant, as
to the disqualification of the referee, cannot be sustained.
The judgment herein should be affirmed, with costs.
Parker, Ch. J., O'Brien, Bartlett, Vann and Cullen,
JJ., concur ; Martin, J., absent.
Judgment affirmed.
John B. Hicks, Respondent, v. Monarch Cycle Manu-
facturing Company, Appellant.
1. Evidence — Action to Recover Alleged Agreed Value op
Lost Property — When Evidence op Expert Admissible to Show
That Such Value Was Excessive. In an action to recover damages for
the loss of property, consisting of a bicycle and models of a patented
improvement thereto, received by defendant for examination at his risk
and at an alleged agreed valuation, the testimony of an expert as to what
it would cost to reproduce by hand a model, fashioned after the patents
of the lost models, is admissible, since the question whether the sum
demanded and claimed to have been agreed upon as the value of the lost
property is to be regarded as liquidated damages, or merely as a penalty,
is a question of intent to be deduced from the circumstances, and if the
sum demanded is an unreasonable price for the property, evidence tend •
ing to show that fact is material upon the question of damages.
2. Same — Erroneous Ruling Excluding Such Evidence. A ruling
of the trial court, excluding such evidence, cannot be sustained upon the
ground that it related only to the models and not to all of the articles in
question and was, therefore, improper and immaterial; the defendant had
the right to give the value of the different articles separately and. in.
that way, establish their total value.
Hicks v. Monarch Cycle Mfg. Co., 68 App. Div. J 34, reversed.
(Argued June 15, 1903; decided October C, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered Feb-
ruary 4, 1902, affirming a judgment in favor of plaintiff
entered upon a verdict and an order denying a motion for a
new trial.
The nature of the action and the facts, so far as material,
are stated in the opinion.
112 Hicks v. Monarch Cycle Mfg. Co. [Oct.,
Opinion of the Court, per Werner, J. [Vol. 176.
Charles A. Wendell and Alfred W. Kiddle for appellant.
It was manifest error to exclude the testimony of Mr. Cope-
land to show what it would have cost to reproduce the Jost
articles. {Noyes v. Phillips, 60 N. Y. 408 ; Little v. Banks,
85 N. T. 266 ; Scofield v. Tompkins, 95 111. 190 ; Ward v.
H. B. Co., 125 N. Y. 230 ; Curtis v. Van Bergh, 161 N. Y.
47 ; Gillis v. Hall, 2 Brews. 342 ; 3 Parsons on Cont. [6th
ed.] 156, 157; 1 Sedg. on Dam. [8th ed.] 596, 599.)
E. F. Hills and L. A. Wray for respondent. The measure
of damages was the amount of the appraised value, $1,000.
{Hatch v. Attrell, 118 N. Y. 389; Curtis v. Van Bergh, 161
K Y. 51 ; LittU v. Banks, 85 N. Y. 258 ; Kemp v. K L
Co., 69 N. Y. 45 ; Collwell v. Lawrence, 38 N. Y. 71 ; TFarrf
v. 77". i?. if. Co., 125 N. Y. 230.)
Werner, J. In this action the plaintiff seeks to recover
from the defendant $1,000.00, as damages for the failure of
the defendant to return a bicycle and two models delivered to
it under the following circumstances : The plaintiff was part
owner of a patent upon an improved bicycle gear. During
the month of February, 1898, he delivered to defendant's
agents, at its salesroom in New York city, a bicycle to which
was attached the patented device referred to, and also two
models thereof, and left them there for the purpose of hav-
ing defendant's agents examine the 6ame with a view to induc-
ing the defendant to adopt it upon the bicycles manufactured
by it.
The plaintiff's teftimony tended to show, and the jury had
the right to find, that certain authorized agents of the defend-
ant examined plaintiff's bicycle with its attachments and the
accompanying models, and expressed a desire to send it to
defendant's factory in Chicago for the purpose of having it
there examined by experts, and that this arrangement was
agreed to with the proviso that said property should be
received at defendant's risk at an agreed valuation of $1,000.00.
The defendant admits the receipt of the property, the ship.
1903.] Hicks v. Monarch Cyclk Mfo. Co. 113
N. Y. Rep.] Opinion of the Court, per Werner, J.
ment thereof to its factory at Chicago, and its failure to return
the same to the plaintiff, but denies that any valuation was
ever agreed upon.
As part of the plaintiff's case lie introduced in evidence
a receipt signed by one Stront, an agent of the defendant,
which was in the following form : " Reed, one bicycle from
J. B. Hicks for examination and return. Value 1000.00."
This receipt was signed by Strout individually, but was writ-
ten on the back of a business card of the defendant indicat-
ing that Strout was the manager of defendant's New York
sales department. Defendant's witnesses gave evidence tend-
ing to show that the statement as to value was not in the
receipt when it was signed and that this statement had been
written into the receipt after its delivery to the plaintiff.
The case was submitted to a jury and plaintiff had a ver-
dict for $1,000.00. The judgment entered upon that verdict
was affirmed by a divided court. As there was some evi-
dence to support the verdict the present review must be con-
fined to questions arising upon the rulings of the trial court
in the reception and exclusion of evidence. We shall limit
our discussion to a single exception which we think is fatal
to the judgment appealed from.
Upon the question of damages defendant called an expert
in the manufacture of bicycles, and he was asked by defend-
ant's counsel if he could tell as an expert what it would cost
to reproduce by hand a model fashioned after the patent
referred to. He answered in the affirmative and was then
asked what it would cost. This question was objected to by
plaintiff's counsel as immaterial and incompetent, "and also
upon the ground that it appears that the wheel was received
and the models, on the valuation of $1000.00 by the com-
pany." The objection was sustained, and the defendant took
an exception.
This evidence was clearly admissible. Whether the sum
of $1,000.00, which the plaintiff claimed had been agreed
upon as the value of the articles delivered by him to the
defendant, was to be regarded as liquidated damages, or
8
114 Hicks v. Monarch Cycle Mfg. Co. [Oct.,
Opinion of the Court, per Werner, J. [Vol. 176.
merely as a penalty, was a question of intent to be deduced
from the circumstances. If the sum named was an unreason-
able price for the articles, evidence tending to show that fact
would have had a very material bearing upon the question of
damages. The rule is that " when the stipulated 6um is dis-
proportionate to presumable or probable damage, or to a
readily ascertainable loss, the courts will treat it as a penalty
and will rely on the principle that the precise sum was not
the essence of the agreement, but was in the nature of secur-
ity for performance." ( Ward v. Hudson River Bldg. Co.,
125 N. Y. 230; Curtis v. Van Bergh, 161 N. Y. 47; 3 Par-
sous on Contracts [6th ed.], 157.)
The learned Appellate Division sought to uphold this rul-
ing upon the ground that, since the question asked related
only to the models and not to all of the articles in question, it
was improper and immaterial. We do not concur in that
view. The defendant had the right to give the value of the
different articles separately and, in that way, to establish their
total value. There is nothing in the form of the excluded
question to indicate that defendant's counsel did not intend to
adopt this method. No specific objection was taken to the
form of the question in this particular, and it is only fair to
assume that if such an objection had been taken, the defend-
ant's counsel would have changed the form of his question,
although we do not think that was necessary. Considering
the nature of the case, the question of damages was obviously
an important one, and the erroneous ruling pointed out must
have injuriously affected defendant's rights.
For the reasons stated the judgment should be reversed and
a new trial granted, with costs to abide the event.
Martin, Vann and Cdllex, JJ., concur; Parker, Ch. J.,
Bartlktt and Haight, JJ., dissent.
Judgment reversed, etc.
1903.] Wilcox v. American Tel. & Tel. Co. 115
N. Y. Rep.] Statement of case.
Sylvester Wilcox, Appellant, v. American Telephone and
Telegraph Company, Respondent.
1. Ejectment — Grant Obtained by Fraud — When Plaintiff
May Attack Its Validity. Although Negligent in Failing to Read
It. The negligence of the plaintiff in an action of ejectment against a
telephone company to recover lands occupied by its poles, in failing to
read an instrument executed by him ur.der seal, granting to the defendant
the right to construct and maintain its lines over and along his property,
does not preclude him from attacking the validity of the paper where it
appears that his signature thereto was obtained by fraud, in that he relied
in signing it upon the statement of defendant's agent that the paper was
a receipt for a dollar, which he wished to pay him for trimming one of his
trees, and the direction of a nonsuit upon that ground is reversible error.
2. When Resort to Equitable Action Unnecessary — Considera-
tion Need Not Be Returned. Under such circumstances the action is
properly brought; the plaintiff is not obliged to appeal to a court of
equity for relief against the grant, but when it is set up to defeat his claim
he may avoid its effect by proof of the fraud by which it was obtained;
nor is he obliged to return the dollar paid to him on its execution; the
rescission of a contract induced by fraud is not attempted; the fraud
charged relates, not to the contract, but to the instrument purporting to
represent it.
Wilcox v. Am. Tel. <fe Tel. Co., 73 App. Div. 014, reversed.
(Argued June o, 1903; decided October 6, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the fourth judicial department, entered May
20, 1902, affirming a judgment in favor of defendant entered
upon a dismissal of the complaint by the court at a Trial Term
and an order denying a motion for a new trial.
The nature of the action and the facts, so far as material,
are stated in the opinion.
Jay IC Smith for appellant. Failure of plaintiff to read
the instrument in question or to have it read to him was not
such negligence as deprived him of the right to show that the
instrument was obtained by mistake of plaintiff and by means of
fraudulent statements made by defendant's agent. (A. C. S.
Instn. v. Burdiek, 87 N. Y. 46 ; Mead v. Burin, 32 N. Y.
116 Wilcox v. American Tel. & Tel. Co. [Oct.,
Opinion of the Court, per Cullen, J. [Vol. 176.
275; Be Flour v. Bowers, 14 Abb. ["IT. S.] 394; Baker v.
Lion, 67 N. Y. 309 ; Bey Ermand v. Ghamherlin, 88 N. Y.
658 ; Jft'fowr v. Smith, 77 N". Y. 227.)
Elhridge L. Adams and Melville Egleston for respondent.
There was no proof of fraud impeaching the grant which
entitled plaintiff to go to the jury upon that issue. (.4. C. S,
Instn. v. Burdick, 87 N. Y. 46 ; Kilmer v. Smith, 77 N. Y.
227; Dey Ermand v. Ghamherlin, 8S K Y. 658; Smith v.
Smith, 134 N. Y. 62.) Assuming that the evidence of the
plaintiff tends to establish fraudulent representations upon
the part of the defendant, yet he cannot be heard to say that
he has been deceived, for he was grossly negligent in not
reading the instrument. (14 Am. & Eng. Ency. of Law [2d
ed.], 115, 135; Jaggard on Torts, 599; Bishop on Contracts,
§ 346 ; 2 Bishop's Grim. Law, § 590 ; Matter of Greenfield,
14 Penn. St. 496; Trambly v. Richard, 130 Mass. 259;
Olson v. lioyern, 77 N. W. Rep. 818; Winchell v. Grider,
29 Ohio St. 48 ; 1 Story's Eq. Juris. § 207 ; Long v. Warren,
68 N. Y. 426 ; Be Milt v. Hill, 89 Hun, 56 ; Starr v. Ben-
nett, 5 Hill, 303; Taylor v. Fleet, 4 Barb. 95; Wood v.
Gordon, 44 N. Y. S. R. 640 ; Shumaker v. Mather, 133 K
Y. 590.)
Cullen, J. The action was brought in ejectment to
recover lands in the highway occupied by the defendant's
poles, and for damages. On the trial the plaintiff proved
title to the locus in quo and the entry thereon by the defend-
ant and the erection of its poles. The defendant then put in
evidence an instrument under seal executed by the plaintiff
some years after the original entry on the highway, whereby
the plaintiff in consideration of one dollar granted to the
defendant the right to construct, operate and maintain its lines
over and along the plaintiff's property. The plaintiff admitted
his signature to this instrument, but testified that at the time
of its execution he was told by an agent of the defendant
that he had trimmed one of the plaintiff's trees and wished
11)03.] Wilcox v. American Tkl. & Tel. Co. 117
N. Y. Rep.] Opinion of the Court, per Cullkx, J.
to pay him a dollar for it ; that the agent told him the paper
was a receipt for a dollar ; that he, the plaintiff, did not read
the paper, that he had not his spectacles with him, and that
thereupon relying upon the statement of the agent as to its
contents he signed the paper. On this evidence the court
directed a nonsuit and the judgment entered thereon was'
affirmed by the Appellate Division by a divided court, Mr.
Justice Spring writing for reversal.
The ground on which the learned trial judge disposed of the
case, as appears in the opinion rendered by him upon denying
the motion for new trial, was that the negligence of the plain-
tiff in failing to read the paper which he signed precluded
him from attacking its validity. We think no such rule of
law prevails in this state, though there may be dicta in the
text books and decisions in other jurisdictions to that effect.
It was expressly repudiated by this court in Albany City Sav-
ings Institution v. Burdick (S7 X. Y. 40), where Judge Earl
said : " It is certainly not just that one who has perpetrated a
fraud should be permitted to say to the party defrauded when
he demands relief that he ought not to have believed or trusted
him. Where one sues another for negligence, his own negli-
gence contributing to the injury will constitute a defense to
the action ; but where one sues another for a positive, will-
ful wrong or fraud, negligence by which the party injured
exposed himself to the wrong or fraud will not bar
relief." (See, also, Welles v. Yates, 44 X. Y. 525 ; Smith
v. Smith, 134 N*. Y. 62.) It is true that in the opinion
delivered in the Smith case Judge Landon refers to the
relations of confidence between the parties, but only as
affecting the credibility of the plaintiff's story that she exe-
cuted the instrument relying on the defendant's statements
as to its contents. The decision did not proceed on any
ground of trust relations between the parties. On the con-
trary, the learned judge said : " The learned counsel for
the defendant cites numerous cases, mostly from other states,
to support his contention that plaintiffs' negligence in not
reading the deed defeats their appeal to equity to relieve
118 Wilcox v. American Tel. & Tel. Co. [Oct..
Opinion of the Court, per Cullen, J. [Vol. 176.
them from it. The law of this state as stated in Albany
City Savings Institution v. Burdick is not so harsh as in some
of the cases cited. It does not, in cases like this, impute
inexcusable negligence to that omission of vigilance and care
procured by the fraud of the wrongdoer." In the other
cases cited there was no relation of trust between the parties,
but merely that of vendor and purchaser. In a case where a
third party has parted with value on the faith of the instru-
ment executed by a person, the question of negligence leading
to the execution of the instrument might be material (see
opinion of Gray, J., in Marden v. Dorthy, ICO N. Y. GO),
but it can have no relevancy in favor of the party who it is
alleged committed the fraud. The credibility of the plain-
tiff's statement was for the jury ; if the trial judge deemed it
unreliable he might have set aside a verdict based upon it,
but that did not authorize him to withdraw the case from the
jury or to direct a verdict or a nonsuit. {McDonald v. Met.
'Street By. Co., 167 K Y. 66.)
The practice adopted by the plaintiff was entirely proper.
He was not obliged to appeal to a court of equity for relief
against the deed, but when it was set up to defeat his claim
he could avoid its effect by proof of the fraud by which it
was obtained. {Kirchner v. New Home Sewing Machine Co.,
135 N. Y. 182.) Nor was he obliged to return the dollar
paid to him on its execution. The plaintiff does not attempt
to rescind a contract as induced by fraud ; the charge by him
relates, not to tl*e contract, but to the instrument which pur-
ports to represent the contract. In such a case the return of
the consideration is unnecessary. {Chary v. Municipal
Electric Light Co., 10 N. Y. Supp. 951 ; affirmed on opinion
below, 139 N. Y. 643.)
The judgment should be reversed and a new trial granted,
costs to abide the event.
O'Brien, Bartlett and Werner, J J., concur ; Parker,
Ch. J., not sitting; Gray, J., not voting; Haight, J.,'
dissents.
Judgment reversed, etc.
1903.] Xiles v. X. Y. C. & II. R. II. R. Co. 119
N. Y. Rep.] Statement of case.
Kobebt L. Niles, Appellant, v. New Yokk Central and
Hudson Riveb Railroad Company et al., Respondents.
Corporations — Action for Damages Resulting from Conspiracy
to Wreck Corporation Must Be Brought by Corporation, Not by an
Individual Stockholder — Protection of Interests of Minority
Stockholders — Measure of Damages. The damages, resulting from
an alleged conspiracy entered into by the majority stockholders of a cor-
poration to wreck it, by refusing, through officers under their control, to
accept business, so that it would be unable to pay the interest upon its
funded debt, and a foreclosure would result by which creditors and the
minority stockholders would be deprived of their interest in the property,
belong to the corporation, not to the individual stockholders, and the latter,
as such, cannot maintain an action for their recovery. Such an action must
be brought by the corporation or its receiver or by any stockholder after
proper demand, in behalf of the corporation and for its benefit, in order that
the interest of creditors may be protected and that they may be paid out of
any recovery. Assuming that the directors of the corporation in such a
case would be controlled by the defendants and would work against the
interests of the minority stockholders, the Supreme Court has ample power
to protect such interests, and the remedy would be adequate, since the
measure of damages in such an action would be the full value of the prop-
erty and franchises of the corporation as it existed prior to the overt acts
producing insolvency, less that which the property actually brought upon
the foreclosure sale.
Nile* v. iv". T. C. & U. B. R. R Co., 69 App. Div. 144, affirmed.
(Argued June 9, 1903; decided October 6, 1903.)
Appeal from a judgment, entered February 21, 1902, upon
an order of the Appellate Division of the Supreme Court in
the first judicial department, which affirmed a judgment of
Special Term sustaining demurrers to and dismissing the
complaint.
The nature of the action and the facts, so far as material,
are stated in the opinion.
Louis Marshall and Nathaniel A. Elsberg for appellant.
The defendants being guilty of a breach of the duty which
they owed to the plaintiff, which breach was followed by the
destruction of the market value of the stock represented by
him occasioning substantial damage, a cause of action in tort
120 Niles v. N. Y. C, & H. R. R. R. Co. [Oct.,
Points of counsel. ^ [Vol. 176.
to recover such damages exists in his favor against the defend-
ants. {Rich v. JT. T. C. cfe //. R. Ii. R. Co., 87 N. T. 390 ;
Graham v. Wallace, 50 App. Div. 101.) A wrong to the
plaintiffs assignors followed by damage having been com-
mitted by the defendants, a case is made out for the applica-
tion of the maxim ubijus ibi remedium. (Ashby v. White,
1 Smith [L. C], 464; Kujek v. Goldman, 150 N. Y. 176;
Hoard v. Peek, 56 Barb. 207 ; Van Pelt v. McGraw, 4 N.
Y. 110 ; Manning v. Monaghan, 23 N. Y. 539 ; Hubinger v.
C. T Co., 94 Fed. Rep. 788 ; Yates v. Joyce, 11 Johns. 136 ;
Like v. McKinstry, 41 Barb. 176; 4 Keyes, 397; Green v.
Button, 2 C, M. & R. 707 ; Andrew v. Deshler, 45 N. J. L.
167.) The fact that the plaintiff is a stockholder of the New
York and Northern Railway Company, and that he might
maintain a representative action in equity for redress, does
not deprive him of the right of maintaining an action at law
for the injury done to his property rights as a stockholder
and the wrong done him as an individual by the destruction
of the market value of his stock. ( WaUham v. Stainton, 1
DeG., J. & S. 678 ; Ritchie v. McMullen, 79 Fed. Rep. 522;
Smith v. Hard, 12 Mete. 371 ; Hanley v. Batch, 94 Mich.
315 ; Gardiner v. Pollard, 10 Bosw. 674 ; Cazeaux v. Mali,
25 Barb. 578 ; Stetson v. Faxon, 19 Pick. 147 ; RothmuUer
v. Stein, 143 N. Y. 581.)
Thomas Thacher and Ira A. Place for respondents. If the
allegations of the complaint, taken as true, show a wrong
done, it was a wrong to the Northern Company alone, and no
cause of action in favor of the plaintiff arises because of an
indirect injury to him or his assignors by any consequent
reduction of the value of their stock. {De 2feufville v.
JSr. Y. & JT. R. R. Co., SI Fed. Rep. 10 ; Greaves v. Gouge,
69 N. Y. 154 ; Gardiner v. Pollard, 10 Bosw. 674; Alexan-
der v. Donohue, 143 N. Y. 203 ; Flynn v. B. C. R. R. Co.,
158 N. Y. 493 ; Morgan v. R. R. Co., 1 Woods, 144 ; Allen
v. Curtis, 26 Conn. 456 ; Smith v. Ilurd, 12 Mete. 371 ;
Talbot v. Scripps, 31 Mich. 268.) The complaint contains no
1903.] Xileb v. X. Y. C. & II. It. It. R. Co. 121
N. Y. Rep.] Opinioii of the Court, per Haight, J.
allegation of any wrong done to the plaintiff as distinct from
the wrong committed against the corporation in which he was
a stockholder. {Allen v. Curtis, 28 Conn. 45G; Smithy.
Ilnrd, 12 Mete. 371; Talbot v. $crij)j)s, 31 Mich. 2C8 ;
Gardiner v. Pollard, 10 Bosw. 674 ; Greaves v. Go-age, 49
How. Pr. 79 ; G9 X. Y. 154 ; Brachett v. G?nswold, 112 X.
Y. 454; Wood v. Amort/, 105 X. Y. 278.)
Haight, J. The demurrers interposed to the plaintiff's
complaint were upon tho ground that the facts stated therein
were not sufficient to constitute a cause of action.
The allegations of the complaint are somewhat voluminous,
hut so far as they are necessary to present the question to ho
determined upon this review they may he summarized and
stated in substance, as follows :
The plaintiff was a stockholder of the Xew York & North-
ern Railroad Company, which owned and operated a railroad
from its junction with the Manhattan railway, near 155th
street, in the city of Xew York, to a point on the Xew York
& Harlem railroad, at or near Brewster, in Putnam county.
The company had about sixty miles of railroad, with terminal
facilities and other property, in the city of Xew York and
elsewhere, of great value, which competed with the Xew York
Central & Hudson River railroad, or roads which it con-
trolled. Under these circumstances the defendants wrong-
fully, unlawfully, fraudulently and maliciously entered into a
combination and conspiracy to procure for the Xew York Cen-
tral & Hudson River Railroad Company the possession, con-
trol and virtual ownership of the property and franchises of
the Xew York & X orthern Company. Among the overt acts
alleged to have taken place, in order to accomplish this result,
are the following :
A majority of the stock of the Xew York & Xorthern
Company was purchased by the defendants, and officers
friendly to them were elected. These officers, after obtaining
the possession of the company, obstructed and hampered its
business by refusing traffic offered to it by other transporta-
122 Niles v. N. Y. C. & II. R. R. R. Co. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 176.
tion companies and shippers, thus depriving it of the income
which it might have received, and diverted its earnings so as
to leave it without sufficient funds with which to pay the
interest accruing and accrued upon its bonded indebtedness ;
that thereupon the defendants purchased or secured the con-
trol, by contract, of a majority of the outstanding bonds, and
then procured the trustee to institute an action for the fore-
closure of the mortgage given to secure the payment of the
bonds. This action resulted in a sale of the property of the
company to the New York & Putnam Railroad Company,
who leased the same to the New York Central & Hudson
River Railroad Company for a period of nine hundred and
ninety-nine years, who thereupon mortgaged its property to
secure the payment of bonds amounting to one hundred mil-
lions of dollars, which have passed into the hands of boiiajide
purchasers, thus rendering the plaintiffs stock of no value.
He demanded judgment for the value of his stock before it
was injured by the action of the conspirators.
The action is at law for the purpose of recovering the
damages which the plaintiff has sustained, and is not brought
for or on behalf of the corporation or of its stockholders. The
question raised for review is as to whether the damages
resulting from the conspiracy belong to the corporation or
to the individual stockholder. In determining this question
we must bear in mind that the rights of creditors are superior
to those of the stockholders, who are only permitted to share
in the earnings of the corporation or in the division of its
assets after the claims of creditors have been satisfied.
We are thus brought to a consideration of the nature of the
injury inflicted by the conspirators. Many of the overt acts
alleged are lawful and justifiable when done in good faith and
without any intent or purpose to harm others, as, for instance,
it was lawful for defendant Morgan and his associates to pur-
chase stock and bonds of the New York <fc Northern Com-
pany and to hold the same for investment or for profit.
Upon the failure of the company to pay the interest accrued
upon the bonded indebtedness, they had the right to petition
1903.] Niles v. X. Y. C. & II. Ii. II. It. Co. 123
N. Y. Rep.] Opinion of the Court, per Haigiit, J.
the trustee to foreclose the mortgage ; but they had no right
to enter into a conspiracy with the officers of the corpora-
tion, elected by them after they had acquired a majority of the
stock, to refuse to accept traffic from other railroad and trans-
portation companies, from which the corporation could have
derived an income sufficient to pay the interest accruing upon
the bonded indebtedness, or to otherwise divert the earnings
of the com party so as to bring it in default and permit the
bringing of the foreclosure action for the purpose of cutting
off the interest of the minority stockholders, or of the general
creditors. The refusing of traffic aud the diversion of funds
operated to deplete the company's treasury and was a direct
wrong to the corporation. It was an injury for which an
action could have been maintained by the corporation, its
receiver, if one had been appointed, or by any stockholder,
after proper demand, in behalf of the company and for its
benefit. In such an action the creditors are vitally interested.
They have the right to have the action prosecuted on behalf
of the company, so that their interests may be protected and
their claims paid out of any recovery which may be obtained.
True, the plaintiff has suffered a depreciation in the value
of his stock as a result of the wrong, and in this respect the
injury was personal to the holders of the stock. But every
stockholder has suffered from the same wrong, and if the
plaintiff cau maintain an action for the recovery of the
damages sustained by him, every stockholder must be
accorded the same right. The injury, however, resulting
from the wrong was, as we have seen, to the corporation.
The depreciation in the value of the plaintiff's stock, and that
of the other stockholders, was in consequence of the waste
and destruction of the property and franchise of the cor-
poration. There are wrongs which if committed against a
stockholder entitle him to a right of action against the person
committing the wrong for the damages sustained, as, for
instance, where a person had been induced to purchase stock
in a corporation and pay a higher price than the stock was
fairly and reasonably worth, or where the owner of stock had
124 Niles v. N. Y. C. & H. R. R. R. Co. [Oct.,
Opinion of the Court, per Hajght, J. [Vol. 176.
been induced to part with it for a less sum than its true value,
by reason of false and fraudulent representations of others
with reference to its value, (fiothmiller v. Stein, 143 X. T.
581 ; Ritchie v. McMidlm, 79 Fed. Itepr. 522.) But these
wrongs are distinguishable from those against the corporation.
They result in injury to the stockholder upon whom the
wrong is practiced, but do not injure the other stockholders
or the corporation itself. The injuries, however, in this case
are not of that character. The defendants had obtained con-
trol of the affairs of the corporation through the board of
directors elected by them. These directors undertook to
manage the property of the corporation in good faith, accord-
ing to their best judgment and skill in the interests of all of
the stockholders. Having assumed the management, they
were bound to use their best endeavors to prevent default in
the payment of interest and the consequent sacrifice of the
corporate property. Under the allegations of the complaint
the directors of this corporation not only failed to discharge
their duties to the stockholders, but they actively participated
in the depletion of the company's treasury and in a sacrifice
of the company's property, thus depriving the stockholders
and the creditors of that which belonged to them.
It is suggested that the corporation is in the hands of a
board of directors controlled by the defendants, and that they
would work against the interest of the minority stockholders.
It is also urged that the remedy of the stockholders, through
the corporation, is inadequate, and that if a recovery should
be had the proceeds might not reach the plaintiff, thus leaving
him with a barren victory. It is doubtless true that the
interests of the directors are inimical to those of the plaintiff
and other minority stockholders, but the Supreme Court has
ample power to protect the minority stockholders, even against
the unlawful acts of the company's board of directors. It
may appoint a receiver, if it has not already done so, and he
may bring the action, or the plaintiff himself, where the officers
of the corporation arc under the control of the parties to be
sued, may bring the action in his own name, but in the right
1903.] Xiles v. N. Y. C. & II. R. R. R. Co. 125
N. Y. Rep.] Opinion of the Court, per ITakhit, J.
of the corporation, making it a party defendant. (Flynn v.
Brooklyn City Ii. Ii. Co., 153 N. Y. 493-508.) As to the
suggested inadequacy of the remedy, we apprehend there is
no trouble. If the defendants conspired with the officers of
the company to improperly deplete its treasury and thus
render the corporation insolvent, in order that a sale might be
made upon a foreclosure judgment, and the stockholders and
creditors thus deprived of their interest in the property, we
see no reason why the damages recoverable may not be for the
full value of the property and franchises of the corporation as
it existed prior to the overt acts complained of producing
insolvency, less that which the property actually brought upon
the foreclosure sale. This would afford full protection to all
concerned. It would indemnify the creditors, and if the 6tock
of the company was actually worth thirty-five dollars, or any
other sum, per share, it would restore to the stockholders the
property of which they have been deprived, or compensation
therefor.
While the case of Flynn v. Brooklyn City Ii. Ii. Co.
(supra) differs widely in its facts from the case under con-
sideration, the principle involved is quite similar. In that
case Vann, J., in delivering the opinion of the court, says,
with reference to the subject we have under review, that
" While courts cannot compel directors or stockholders, pro-
ceeding by the vote of a majority, to act wisely, they can
compel them to act honestly, or undo their work if they act
otherwise. Where a majority of the directors, or stockhold-
ers, or both, acting in bad faith, carry into effect a scheme
which, even if lawful upon its face, is intended to circum-
vent the minority stockholders and defraud them out of their
legal rights, the courts may interfere and remedy the wrong.
Action on the part of directors or stockholders, pursuant to a
fraudulent scheme designed to injure the other stockholders,
will sustain an action by the corporation, or, if it refuses to
act, by a stockholder in its stead for the benefit of all the
injured stockholders"
In the case of Farmers' Loan cfe Trust Co. v. New York
126 Gohnfkld v. Tanknbaum. [Oct.,
Statement of case. [Vol. 170.
<& Northern liy. Co. (150 N. Y. 410) we reversed the judg-
ment of foreclosure referred to in the complaint in this action.
In the trial of the foreclosure action in that case the trial
court excluded the evidence offered to the effect that the offi-
cers of the company had declined to accept traffic from other
roads, and had diverted its money. It was because of the
exclusion of this evidence that the judgment was reversed,
thus in effect holding that had the facts appeared as claimed
in the offer they would have established a good defense in
equity to the action. It now appears that a sale of the com-
pany's property, under the foreclosure judgment, had taken
place before the reversal of the judgment. But it wrould 6eem
to logically follow that if the matter excluded constituted
a defense which the corporation could avail itself of, the
damages resulting would also belong to the corporation.
(See, also, Leslie v. Lorillard, 110 N. Y. 519-535; Gamble
v. Queen* County Water Co., 123 N. Y. 91 ; Sage v. Culver,
147 N. Y. 245 ; Howes v. Oakland, 104 U. S. 450.)
.We think that the damages belong to the corporation and
not to the individual stockholder, and that the judgment
should be affirmed, with costs.
Parker, Ch. J., O'Brien, Bartlett, Martin and Vann,
JJ., concur ; Gray, J., not sitting.
Judgment affirmed.
Charles M. Cohnfeld, Appellant, v. Lkon TanenbauMj
Respondent, Impleaded with Another.
Guardian and Ward— Check Drawn by Guardian Notice to
Payee That Fund Belongs to Ward — Funds Mingled with Those
op the Ward Belong Presumptively to Ward — Burden op Proof.
Checks drawn upon a guardian's account in which moneys belonging to a
corporation of which he was the manager had also from time to time been
deposited, signed by him as guardian, and given in payment of a debt
due from the corporation, give presumptive notice to the payee that the
funds paid him were not those of the corporation or of the drawer per-
sonally, and he is put on inquiry to ascertain the latter's authority to
apply the money in payment of the debt; presumptively, all the moneys
1903.] CoiIXFELD V. TaNENBAUM. 127
N. Y. Rep.] Statement of case.
in the account belong to the wards, and in the absence of affirmative proof
that at any time any particular sum on deposit was the property of the
corporation they are entitled to recover the proceeds of the checks.
Cohnfeld v. Tanenbaum, 58 App. Div. 810, reversed.
(Argued June 15, 1903; decided October 6, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered March
18, 1901, affirming a judgment in favor of defendant entered
upon a dismissal of the complaint by the court on trial at
Special Term.
The nature of the action and the facts, s.o far as material,
are stated in the opinion.
George W. Weiffenbach for appellant. When a person
receives from a trustee funds of the trust estate with knowl-
edge that they are such trust fun^s and for a purpose foreign
to the trust, he may, at the option of the cestui que trust, be
regarded as a constructive trustee and compelled to account
in equity for the funds so received, or be charged in an action
at law with conversion. (Marshall v. De Cordova, 26 App.
Div. 615 ; English v. Mclntyre, 29 App. Div. 446 ; Suarez
v. Montigny, 1 App. Div. 494; Zimmerman v. Kinkle, 108
N. Y. 282; Gerard v. McCormick, 130 N. Y. 261; Wet-
more v. Porter, 92 N. Y. 76 ; Fellows v. Longyer, 91 N.
Y. 324 ; Anderson v. Daley, 38 App. Div. 505 ; F Nat.
Bank v. Nat. B. Bank, 156 N. Y. 459.) The checks in suit
having been drawn against and paid out of the guardianship
account, it was not incumbent on the plaintiff to show specifi-
cally that all the money in the trust account was the chil-
dren's. Every dollar which went into the account became
impressed with the trust eo instanti. The burden, therefore,
was on the defendant to prove affirmatively that he was enti-
tled to the money which he received on the checks in suit.
(B. & C. T. R. Co. v. Paviour, 164 N. Y. 281 ; Marshall v.
De Cordova, 26 App. Div. 615 ; Van Alen v. A. Nat. Bank,
52 N. Y. 1 ; Ferris v. Van Vechten, 73 N. Y. 113 ; Baker v.
Bank, 100 Is. Y. 31 ; I. dk T. Nat. Bank v. Peters, 123 N. Y.
128 COHNFELD V. Ta.NENBALtM. [Oct.,
Points of counsel. [Vol. 176.
272 ; Falkland v. S. Nat. Bank, 84 X. Y. 145 ; Warren v.
Union. Bank, 157 X. Y. 259; Lathrop v. Brimpton, 31 Cal.
117; Shibla v. Ely, 1G X. J. Eq. 181 ; Anderson v. Daley,
38 App. Div. 505 ; English v. MoTntyre, 29 App. Div. 439.)
The lower courts erred in holding that the moneys paid out to
the defendant were the moneys of the company, under the
rule of attributing certain drawings against certain deposits in
order of time. (Knatchbull v. Ilallett, L. R. [13 Ch. Div.]
696 ; Nat Bank v. Ins. Co., 104 U. S. 54 ; F. S. & T. Co. v.
EarU, 110 U. S. 710.)
Sol. 3f. Stroock for respondent. Upon the question of
notice there is nothing to charge this defendant with any lia-
bility in favor of the plaintiff or his assignors. ( Van Ahn
v. A. Nat. Bank, 52 X. Y. 1 ; Cavin v. GUason, 105 X. Y.
256 ; Holmes v. Oilman, 138 N. Y. 369 ; Marshall v. Be
Cordova, 26 App. Div. 615 ; Ii. & C. T. R. Co. v. Paviour,
164 X. Y. 2S1 ; J. B. El. Co. v. M. Nat. Bank, 55 App.
Div. 1 ; Dike v. Drexel, 11 App. Div. 79 ; Warren v. Union
Bank, 157 X. Y. 259.) Upon the proof submitted and the
findings of the trial court the burden rests on the plaintiff to
show that the identical moneys received by the defendant were
trust moneys and belonged to the infants. (Cavin v. Gleason,
105 X. Y. 256 ; Ferris v. Van Yechten, 73 X. Y. 125 ; Cole
v. Cole, 54 App. Div. 37 ; Matter of Holmes, 39 App. Div.
17.) Where a trustee, in violation of his trust, mingles the
trust fund, not with his own money, but with another trust
fund, and afterwards draws out the money by checks gener-
ally and in the ordinary manner, the first cestui que trust must
identify the moneys so paid out as his own, and, failing to so
identify them, he must resort to the moneys last deposited.
(/. & T. Nat. Bank v. Peters, 123 X. Y. 272.) The trustee
cannot, by mingling the funds of his cestui que trust with his
own, destroy the fiduciary character of the deposit. How-
ever, this rule does not apply where the trustee mingles the
trust funds with other trust funds or moneys belonging to
innocent third parties. ( Van Alen v. A. Nat. Bank, 52 XT.
1903.] CoiINFELD V. TaNENBAUM. 129
N. Y. Rep.] Opinion of the Court, per Cullen, J.
Y. 1 ; Cavin v. Gleason, 105 N. Y. 256 ; Holmes v. Gilman,
138 N. Y. 369 ; Blair v. Hill, 50 App. Div. 33 ; Shute v.
Hinman, 47 L. E. A. 16; Coke on Litt. 286b ; Story's Eq.
Juris. § 1259 ; Illinois Bank v. Bank of Buffalo, 15 Fed.
Rep. 558 ; Hooly v. Gieve, 9 Abb. [N. C] 8 ; Dike v.
Drexel, 11 App. Div. 77.)
Cullen, J. The action was brought by the plaintiff in his
own right and as assignee of his brothers and sisters, children
and wards of Isidore Cohnfeld, deceased, to recover from the
defendant the amount paid to him by said guardian by three
checks, aggregating the sum of $1,200. The case was tried
on an agreed statement of facts which is extremely meagre in
its details. By such statement it appeal's that said Isidore was
appointed guardian of said children on January 2nd, 1885. On
January 1st, 1886, he had in his possession moneys of his
wards amounting to $10,355.79, and in March, 1892, he opened
an account in the New York Security & Trust Company in
the name of Isidore Cohnfeld, guardian, and deposited therein
the sum of $12,000. At the same time he filed with the trust
company a certificate of his appointment as guardian by the
surrogate of New York county. Varions deposits were made
to the credit of that account and checks drawn against it. No
information is given as to the sources from which the moneys
deposited were obtained or the purposes to which the checks
drawn on the account were appropriated, except that there
were from time to time some moneys of the Cohnfeld Manu-
facturing and Trading Company, a corporation of which the
guardian was manager, deposited in the account. What those
sums were or what checks were drawn against them is not
stated. From the bank account it appears that on the first day
of January, 1893, all the moneys had been withdrawn except
a balance of $61. In August, September and December of
that year the guardian drew three checks, the subject of this
action, and delivered them to the defendant in payment of
claims for rent he held against the Cohnfeld Company. The
guardian died in April, 1896, without having accounted
9
130 Cohnfeld v. Tanenbaum. [Oct.,
Opinion of the Court, per Cullen, J. [Vol. 176.
to the wards for their property. The defendant had no knowl-
edge of the rights of the parties to the moneys paid to him
except such as was given to him by the form of the checks,
which were signed Isidore Cohnfeld, Guardian. On these
facts the trial court rendered judgment for the defendant,
which has been affirmed by the Appellate Division.
We thiftk the courts below erred in their disposition of this
case. From the extremely meagre character of the evidence
it will be seen on final analysis that the determination of the
case must be governed by presumptions. The signature to the
check, "Isidore Cohnfeld, Guardian," gave the defendant
notice that presumptively the funds being paid to him were
not those either of the Cohnfeld Manufacturing Company or
of Isidore Cohnfeld personally, and he was put on inquiry to
ascertain the authority of Cohnfeld to apply the money in
payment of the company's debt. (Gerard v. McCormick,
130 N. Y. 261.) This proposition is conceded by both the
courts below. Had he made the inquiry he would have
learned the facts which have already been stated. He is,
therefore, chargeable with all that those facts import or which
is fairly to be inferred from them. It is to be noted that the
parties did not admit nor did the court find that at the time
at which the checks in suit were drawn there was a dollar of
the moneys of the Cohnfeld Company remaining in the
account, nor are there any facts admitted or found from
which such an inference can be drawn. The finding is that
moneys of the company were deposited in the account and
payments made from the account on its behalf, but not a word
as to the amount of the deposits or the amount of the pay-
ments. It is very evident that the first question to be deter-
mined is, to whom, on this state of facts, did the moneys of
the account prima facie belong, and this question is to be
decided between the plaintiff and the defendant the same as
it would be between the plaintiff and the company, were that
company asserting its rights to the moneys on deposit. No
evidence was given by the plaintiff to show that any of the
moneys of the wards were deposited in the, account subsequent
1903.] COHNFKLD V. TANENBAUM. 131
N. Y. Rep.] Opinion of the Court, per Cullkn, J.
to its depletion in January, 1893, and for this reason the courts
below were of opinion that the plaintiff had failed to identify
the moneys paid to the defendant. But it was not necessary
for the plaintiff to give evidence on the subject. The account
was that of the wards pr of their property. There is neither
finding nor proof that the guardian embezzled the money with-
drawn by him prior to January, 1893. The money may have
been drawn out for investment or other legitimate purposes,
and when moneys were subsequently received by the guardian
from such investments it was his duty to again deposit them.
But if we assume that the guardian had embezzled the money,
the obligation existed to make restitution and his subsequent
deposits from whatever sources received would be an appro-
priation of those moneys in satisfaction of his wards' claim
against him. From such time they became the infants' moneys
as against every one except one who claiming the moneys could
show they had been wrongfully diverted. (Baker v. New
York National Exchange Bank, 100 N. T. 31.) In the
opinion of the learned Appellate Division it is said : " It is
immaterial that in this case the account was opened and con-
tinued in Cohnfeld's name as guardian. We have a mixed
fund to deal with in which moneys of different parties were
mingled by one occupying a fiduciary relation to both par-
ties and the rights of these parties are to be settled upon
equitable principles." We entertain a different view. We
think the point on which this case turns is the name and
character in which the account was opened and kept. In
the absence of proof to the contrary all the moneys in that
account were presumptively the property of the wards.
For another party to successfully reach any part of the
fund it would be insufficient to show merely that moneys
of the party had been improperly placed in the account;
it would be necessary to go further and to prove the amount
so deposited ; in other words, the burden of proof would rest
on the claimant to establish just what portion of the fund
belonged to him and the remainder, as to which he failed
to affirmatively show title, would be awarded to the party in
132 Matter of Brown v. Order of Foresters. [Oct.,
Statement of case. [Vol. 176.
whose name the account stood and to whom it presumptively
belonged. As already said, there is no proof in the case that
any particular sura on deposit was the property of the Cohn-
feld Company.
These views dispose of the objection that the plaintiff failed
to comply with the rule that to follow trust funds they must
be identified. The funds in this case were identified by their
deposit in the trust company to the credit of Cohnfeld,
guardian. Nor do we see that the rule adopted in Clayton's
Case (Devaynes v. Noble, 1 Merivale Ch. Rep. 572) has any
application to this case. That rule, that the earliest draft
should be charged against the earliest deposits, might apply if
it appeared that the moneys on deposit were insufficient to
satisfy the claims of both cestuis que trustenty the wards and
the Cohnfeld Company ; but it has no bearing on the proposi-
tion that the burden rested on the Cohnfeld Company or on
the defendant, who claims under it, to establish that it had any
claim on the trust fund.
The judgment should be reversed and a new trial granted,
costs to abide the event.
Parker, Ch. J., Bartlett, Haioht, Martin, Vann and
Werner, JJ., concur.
Judgment reversed, etc. ^
In the Matter of the Application of Lesser Brown, Respond-
ent, for a Writ of Mandamus against The Supreme Court
of the Independent Order of Foresters, Appellant.
1. Benefit Association — Unreasonable By-Laws Cannot Deprive
Members of Their Rights. By-laws of a mutual benefit association, in
so far as they attempt to make the default or misconduct of its own agent
and officer in failing to pay over moneys received for dues and assess-
ments the default and misconduct of the members, who pay them precisely
as directed therein and on account of such default deprive them of their
rights as members, including a forfeiture of their insurance, are unreason-
able and void, and have no effect upon the status of members in good
standing.
2. Same. The fact that in such a case, if a suspended member is denied
reinstatement, the constitution and by-laws provide that he may appeal to
1903.] Matter of Brown v. Order of Foresters. 133
N. T. Rep.] Statement of case.
various courts or tribunals within the association, and that no member
shall be entitled to bring any civil action or legal proceeding until he shall
have exhausted all the remedies by such appeals, does not debar him from
any remedy or relief in the courts of this state, in a case where the obstacles
to the prosecution of an appeal amount to almost a denial of justice, and
where, if prosecuted, no relief would result therefrom.
Matter of Brown v. Supreme Court of Order of Foresters, 66 App. Div. 259,
affirmed.
(Argued June 23, 1903; decided October 6, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
November 21, 1901, affirming a judgment in favor of plaintiff
entered upon a decision of the court at a Trial Term without
a jury.
The nature of the proceeding and the facts, so far as mate-
rial, are stated in the opinion.
0. P. StockweU for appellant. The certificate of member-
ship and the constitution and laws constitute the contract of
insurance, and the rights of all parties are to be determined
thereby. (Collins v. Collins, 30 App. Div. 343 ; Matter of
K It. F. L. Assn., 131 N. Y. 369 ; Meyers v. Masonic Guild,
126 N. Y. 615; Syuchar v. W. C. Assn., 14 Misc. Rep. 11;
Willison v. J. cfe T. Co., 30 Misc. Rep. 198 ; Sahin v. Phinr
ney, 134 N. Y. 428 ; Ilellenberg v. Dist. No. 1, 1. O. B. B., 94
N. Y. 580 ; Austin v. Dutcher, 56 App. Div. 393 ; Hutchin-
son v. Supreme Tent, 68 Hun, 355 ; Belton v. Hatch, 109
K Y. 593; Anacosta Tribe v. Murbach, 13 Md. 91.) The
provisions ia the constitution and laws of the defendant pro-
viding for an adjustment and settlement within its own body
by the several tribunals therein made without litigation before
the right of action shall accrue is a wise and lawful one. (D.
dc II. C. Co. v. P. C. Co., 50 N. Y. 250 ; Lafond v. Deems,
81 N. Y. 507; Matter of IT. Y., L. c& W. It. R. Co., 98
N. Y. 447; Lewis v. Wilson, 50 Hun, 166; 121 N. Y. 284;
Warner v. S. C. C. M. F. S. Ins. Assn., 39 N. Y. S. R.
649; Poultney v. Bachman, 31 Hun, 49 ; McCabe v. F. M.
134 Matter of Brown v. Order of Foresters. [Oct.,
Opinion of the Court, per O'Brien, J. [Vol. 176.
Soc, 21 Hun, 149 ; Spink v. C. F. Ins. Co., 25 App. Div.
484 ; Rood v. R. P., etc., M. B. Asm., 31 Fed. Rep. 62 ;
Myers v. Jenkins, 57 N. E. Rep. 1089.) The contention that
the contract under discussion is unreasonable and void is
untenable. (Spink v. C. F. Ins. Co., 25 App. Div. 4S4;
Supreme Council v. Forsinjer, 125 Ind. 52 ; Pierce v. Dela-
maier, 1 K Y. 17 ; Oakley v. Aspinwall, 3 N. T. 553 ; Fry
v. Bennett, 28 li. Y. 329 ; Judkins v. U. M. F Ins. Co., 39
N. II. 172 ; People v. St. George Soc., 28 Mich. 261 ; Sperrxfs
Appeal, 116 Penn. St. 391.)
David Huslander for respondent. The provision of the
defendant's constitution that in case of disputes the members
shall exhaust their remedy in the order before resorting to a
court of law is unreasonable and cannot be enforced.
(Bukofzer v. U. S. Grand Lodge, 40 N. Y. S. R. 653;
Brown v. Supreme Court I. of F., 34 Misc. Rep. 556 ; Peo-
ple ex rel. v. M. Jf. P. Union, 118 N*. Y. 101 ; Zoubat v.
Le Roy, 40 Hun, 546.) The subordinate lodges are in all
transactions the agents of the supreme lodge. (Knights of
Pythias v. Withers, 59 IT. S. App. 177; 177 U. S. 260;
Shunch v. G. W. W. Fond, 44 Wis. 369 ; Murphey v. Sons
of Jacob, 77 Wis. 830; Tribe of Ben Bur. v. Ball, 24 Ind.
App. 316 ; Frdrnan v. M. Ins. Co., 44 Wis. 376 ; Sc?u>u v.
Grand Lodge, 17 Fed. Rep. 214; Barbara v. Accidental
Grove, etc., 4 Mo. App. 429 ; Watson v. Jones, 13 Wall. 679;
Sprague v. 77. P. Ins. Co., 69 N. Y. 129 ; Whited v. G. F.
Ins. Co., 76 N. Y. 415 ; Partridge v. C. F lis. Co., 17 Hun,
95.) Constitutions and by-laws should be reasonable. (Brady
v. Cochrane, 39 K Y. S. R. 181; Carton v. Father
Matthew, etc., 3 Daly, 20 ; Kent v. Q. M. Co., 78 N. Y. 159 ;
People y. McDonough, 8 App. Div. 591 ; 1 Bacon on Ins.
§82'
O'Brien, J. The courts below have adjudged that the
plaintiff or relator was entitled to a peremptory writ of man-
damus commanding the defendant to reinstate the relator in
1903.] Matter of Brown v. Order of Foresters. 135
N. Y. Rep.] Opinion of the Court, per O'Brien, J.
all his rights and privileges as a member of the order of
Foresters in good standing upon payment by him of such dues
and assessments as have accrued since the date of his suspen-
sion and further that the relator recover his costs of the pro-
ceedings. This appeal presents the question whether the
relator was entitled to that relief upon the undisputed facts.
The defendant is a foreign corporation, organized under
the laws of Canada on the fraternal and mutual benefit plan,
doing business in this state. The purposes of the corporation,
the rules for its government and the rights, duties and obliga-
tions of the members, are embodied in the constitution and
by-laws. The corporation has made a very liberal use of the
power to enact by-laws, since it appears from the record that
at least two hundred and fifty-eight sections were in force at
the time of the several transactions out of which this con-
troversy arises. These sections constitute an elaborate and
somewhat complicated code of laws, many of which are quite
drastic in their operation upon the rights of members as will
presently appear. One of the primary and principal purposes
of the corporation was to insure the lives of its members and
to aflford them assistance in case of physical disability or sick-
ness as prescribed in the law of its creation. It is admitted
that on the last day of September, 1900, the relator was a
member in good standing of the organization and of one of
its subordinate lodges in this state, and was insured in the
defendant in the sum of $1,000 ; that all his dues and assess-
ments as a member of the order and as the holder of such
insurance, which by the constitution and by-laws of the
defendant he was required to pay, were fully paid up to that
date. In fact there is no claim made by the defendant that
the relator over was personally in default with respect to any
duty or obligation to the defendant concerning the insurance
or his status as a member of the organization, but, notwith-
standing all this, the defendant's contention is that he has
ceased to be a member of the order and has lost all rights as
such member, including a forfeiture of the insurance.
A brief review of the argument in support of this proposi-
136 Matter of Brown v. Order of Foresters. [Oct.,
Opinion of the Court, per O'Brien, J. [Vol. 176.
tion is all that is necessary to the disposition of this appeal.
The by-laws provide that the relator's dues and assessments
were to be paid to the financial secretary of the subordinate
lodge or court, as it is called, and he complied with this
requirement and made the payments accordingly. But the
by-laws also provide that its own officer, thus receiving the
money, shall be deemed to be the agent of the member mak-
ing the payment, and any default on the part of that officer to
transmit the money to the principal office shall be imputed to
thfe member, and not until the money is actually transmitted
to the defendant's proper officer, at the principal office, is the
obligation of the paying member discharged. In this case it
appears that the financial secretary of the relator's lodge did
not transmit the funds but made default in that respect. The
by-lawo then provide that any subordinate lodge or court, not
transmitting the funds so received on the first day of the suc-
ceeding month and so continuing in default until the end of
the month shall ipso facto be deemed to be suspended on the
first day of the succeeding month. This suspension affects
not only the subordinate court, as such, but the whole body
of its membership and thus the innocent and the guilty are
cut off from all the benefits of the association, through the
default or misconduct of the defendant's own agent, and
without any fault of their own.
It is true that the member may be reinstated when the
default has ceased, but not unless he is able to present a cer-
tificate of good health or to pass the medical board. The
relator attempted to comply with this provision but was
unable to procure the certificate of good health or pass the
medical examination, as his physical condition was impairedv
in consequence of an operation performed after he became a
member and while in good standing, and so his application
for reinstatement was rejected.
The constitution and by-laws provide for appeals from
decisions of this character to various courts or tribunals within
the order and that no member shall be entitled to bring any
civil action or legal proceeding until he shall have exhausted
1903.] Matter of Brown v. Order of Foresters. 137
N. Y. Rep.] Opinion of the Court, per O'Brien, J.
all the remedies by such appeals. The tribunal of last resort
of the order is called the supreme court, but it is found that
no session of that body was held after the suspension of the
relator and before the 30th day of January, 1901, when this
proceeding was commenced, and that none could be held until
the second Tuesday in April, 1902, and then in the city of
Los Angeles in the state of California. It is argued that
these regulations or laws debar the relator from any remedy
or relief in the courts of this state. Conceding that the con-
stitution and by-laws of the defendant are a part of the con-
tract between the parties and the general rule that the law
permits great freedom of action in making contracts, there
are some restrictions placed upon that right by legislation, by
public policy and by the nature of things. As this court has
said in a recent case : " Parties cannot make a binding con-
tract in violation of law or of public policy. They cannot in
the same instrument agree that a thing exists and that it does
not exist, or provide that one is the agent of the other and at
the same time and in reference to the same subject, that there
is no relation of agency between them. They cannot bind
themselves by agreeing that a loan, in fact void for usury, is
not usurious, or that a copartnership, which actually exists
between them, does not exist. They cannot by agreement
change the laws of nature, or of logic, or create relations
physical, legal or moral, which cannot be created. In other
words, they cannot accomplish the impossible by contract."
(Sternaman v. Met Life Ins. Co., 170 IT. Y. 13.) In so far as
the defendant attempted by the enactmeut of by-laws to make
the default or misconduct of its own agent and officer the
default and misconduct of the members, who had paid their
dues and assessments precisely as the regulations required, its
action was nugatory. No corporation can be deemed to pos-
sess the power to visit upon its members the consequences of
a default in the payment of funds by its agent and officer to
the extent of excluding the members from all their rights and
virtually expelling them for such reason from the organization.
The learned courts below have held that the by-laws had
138 Matter of Brookfield. [Oct,
Statement of case. [Vol. 176.
no effect upon the status of the relator as a member of the
order in good standing for the reason that in so far as they
deprived him of the rights acquired by his membership they
were unreasonable and void. We fully concur in this view
of the case and in the reasons stated in support of it in the
learned opinion below. The defendant had no power, under
the circumstances of this case, to deprive the relator of the
right to resort to the civil courts for redress, or to compel
him to seek his remedies by appeal to the various judicatories
erected within the order. The manner in which these courts
are organized, the expense and delay involved in procuring a
hearing in another and very remote jurisdiction, were obsta-
cles that amounted almost to a denial of justice. But it is
plain that such an appeal could result in no relief to the
relator, since, under its own laws, the defendant could not
reinstate him without the medical certificate, and it was
impossible to procure that.
We think that the judgment is right and must be affirmed,
with costs.
Parker, Ch. J., Bartlett, Vann, Cullen and Werner,
J J., concur ; Martin, J., absent.
Judgment affirmed.
In the Matter of the Application of 'William Brookfield,
as Commissioner of Public Works of the City of New York,
Respondent, to Acquire Certain Real Estate for the Pur-
pose of Protection of the Water Supply of the City of New
York.
De Witt C. Sarles, Appellant.
1. Riparian Rights — When a Deed of Land Bounded by, and Sur-
rounding, Inland Pond Does Not Convey the Land under Waters
of the Pond. Where the owner of a pond, or a portion thereof, and of
the lands surrounding the same, executed and delivered to the owner of a
mill site upon a river through which flowed the waters from the pond, a
deed containing a description bounding all of the lands surrounding the
pond owned by the grantor, followed by the words " being all the land
1903.] Matter of Brookfield. 139
N. Y. Rep.] Statement of case.
on both sides of Byram River and Byram Pond that will be overflowed
by the waters of Byram River and Byram Pond in consequence of the
erection of a dam across said Byram River, southerly of lands hereby
conveyed, of sufficient height to raise the waters in Byram Pond eight
feet and two- tenths above its present level and the above-described land
is conveyed * * * only for the purpose of being flowed by said
pond/' which deed was followed by another from the same grantor to the
same grantee containing substantially the same description and provisions
contained in the former deed, with the exception that it gives the right to
raise the water of the pond twelve feet instead of eight; such deeds con-
vey the land on the sides of the pond for flowage purposes only, not
that of the pond itself, t. e., the land bordering upon and bounded by
the waters of the pond which might be overflowed by the raising of the
dam, leaving the title to the land then under the waters of the pond
remaining in the grantor.
2. Same — When Deed of Land Surrounding Pond Conveys Ease-
ment, or Right, to Overflow Such Land with Waters Collected
and Stored by Dam, Leaving Title and Benefits Thereof in
Grantor — Effect of Agreement by Grantor to Buy Back Ease-
ment if Not Used by Grantee. The ordinary and formal parts of
such deeds, in terms including all hereditaments and appurtenances
belonging to the land thereby conveyed, must be construed with the pro-
vision limiting the land conveyed to "all the land on both sides of
Byram River and Byram Pond that will be overflowed * * * in
consequence of the erection of the dam across said Byram River," and
with the provision that the land is conveyed " only for the purpose of
being flowed by said pond," which provisions are the essential features,
the real essence of the contract, and should be given force and effect in
preference to suoh formal parts; so construed, the deeds conveyed to the
grantee a mere easement to have the waters collected by the dam overflow
such land, leaving the fee, possession and use thereof, in connection with
the upland, in the grantor, subject only to such right of flowage; and a
subsequent provision of such deeds that in case the grantee should not use
the land thereby conveyed for flowage purposes, then the grantor, his heirs
and assigns, should buy back such lands at a price to be agreed upon, or
settled by arbitration, is not a condition subsequent to the revesting of
the title in the grantor, but is a mutual agreement of the parties which
could be enforced by either and does not affect the question as to the
interest or title conveyed by the deeds.
8. Same — Condemnation of Rights of Owners of Waters of
Inland Pond and Rights of Owners of Land Surrounding the Pond
and underwaters of the same in proceeding by clty of new
York under Chapter 189 of Laws of 1898— When Owner of Bed of
Pond Entitled to Substantial Damages Therefor. Where the city
of New York, in a condemnation proceeding instituted under the statute
140 Matter of Brookfield. [Oct.,
Statement of case. [Vol. 176.
(L. 1893, cli. 189), providing for the protection of the sources of its water
supply, has acquired the right of the grantee named in the deeds in
question to maintain the dam across By ram river and use the waters col-
lected and stored therein, and has also acquired from the successor in title
of the gn^or named in such deeds the title to the lands surrounding
By ram pond, for which the commissioners of appraisal awarded sub-
stantial damages, but awarded only nominal damages for the bed of the
pond, he is entitled to a new appraisal awarding him substantial conpensa-
tion for his right to use the pond in connection with the upland for
domestic purposes, the harvesting of ice, etc., and also for his right to
repurchase his interest in the lands surrounding the pond as provided for
in the deeds, since such rights are real, entitling him to substantial dam-
ages upon their being taken from him, pursuant to the provisions of the
act under which the condemnation proceedings were instituted.
Matt&r of Brookfield, 78 App. Div. 520, reversed.
(Argued June 2, 1903; decided October 6, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the second judicial department, entered
January 21, 1903, which reversed an order of Special Term
setting aside a portion of the report of commissioners of
appraisal.
The nature of the proceeding and the facts, so far as
material, are stated in the opinion.
James Dunne for appellant. The grants to Josiah Wilcox
by the latter's deeds were simply grants of dry land for the
express purpose of being flooded by the waters of Byram pond,
and did not carry with them the fee to any part of the bed of the
pond. {French v. Car/iart, 1 N. Y. 96 ; Mott v. Mott, 68 K
Y. 246 ; Gould on Waters [3d ed.], §§ 199, 200, 319.) The
language of the description of the Lyon's deeds, " all the lands
on both sides of Byram river and Byram pond that will be
overflowed" in raising the waters of the pond twelve feet
above the natural level, does not embrace title to the bed of
the >ond. {Child v. Starr, 4 Hill, 369; Starr v. Child, 5
Den. 590; IlaUey v. McCormick, 13 N. Y. 296; K C. F
Ins. Co. v. Stevens, 87 N. Y. 287 ; Ilolloway v. Southmayd,
139 N, Y. 390 ; Dewing v. Reilly, 167 K Y. 184 ; Clarfaon
1903.] Matter of Beookfield. 141
N. Y. Rep.] Points of counsel.
v. Hathaway, 15 Johns. 447; Nostrand v. Burland, 21
Barb. 478 ; Roberts v. Baumgarten, 110 N. T. 380.) Title
to the bed of the pond has not passed to Josiah Wilcox, or
his successor in interest, either (1) by way of adverse posses-
sion under color of title, or (2) by prescriptive right of ease-
ment under the qualified fee granted by John N". Lyon
and Samuel Augustus Lyon. (Gillespie v. Broas, 23
Barb. 370 ; Gould on Waters [3d ed.], §§ 333, 334, 340 ;
Smith v. City of Rochester, 92 N. Y. 463.) The easement in
favor of Wilcox to use the bed of the pond was a simple right
to use such bed as a means of support for the additional twelve
feet of water superimposed thereon by reason of flooding the
lands so granted. (Lewis on Em. Dom. § 441 ; Village of
Olean v. Steyner, 135 N. Y. 341.) The rights of the city
under the Wilcox deeds to maintain' the waters of By ram
pond twelve feet above their original level did not deprive
the owners of the bed of the pond of their right to compen-
sation for the taking of such bed. (City of Syracuse v.
Stacey, 169 N. Y. 231.) De Witt C. Sarles was entitled to
have his interest in the bed of By ram pond valued upon a
consideration of all the uses for which such pond was adapted
and available ; that is, all the uses to which it might be put
by any one. The uses which he or his grantors had been, or
at any time thereafter might be, capable of making of the
property was a wholly unimportant consideration. (Boom
Co. v. Patterson, 98 U. S. 403 ; G. F. Mfg. Co. v. U. S, 16
U. S. Ct. Claims, 160 ; 112 U. S. 645 ; Matter of N. Y., L. &
W. By. Co., 27 Hun, 116 ; College Point v. Bennett, 5 T. &
C. 217 ; 2 Hun, 669 ; Matter of Gilroy, 85 Hun, 424 ; Little
Bock Junction v. Woodruff, 49 Ark. 381 ; Hyde Park v. W.
T. Co., 117 111. 233 ; S. B. L. dh T. Co. v. Nagle, 70 Cal. S3 ;
S. P. Water Works v. Brinkhouse, 92 Cal. 548 ; Snauffer v.
By. Co., 105 Iowa, 681.)
George L. Rives, Corporation Counsel (Theodore Connoly
and Henry T. Bykrnan of counsel), for respondent. The
only estate which was left in John N". Lyon and Samuel A.
142 Matter of Brookfield. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 176.
Lyon, their heirs and assigns, was the possibility of repurchase
or reverter. This cannot be assigned, particularly in view of
the fact that no nonuser is alleged and the purpose of the
original deed is being literally pursued. {Craigg v. Wells, 11
N. Y. 315 ; Lyon v. Hersey, 103 N. Y. 264 ; Gould on
Waters [3d ed.] 588.) The conveyances to Wilcox through
which the city derives its rights vested in the grantee an abso-
lute fee subject to a condition, not a limitation, that the lands
conveyed should be used for the purpose of raising the waters
of Byram pond. {Lyon v. Hersey, 103 N. Y. 264 ; Uping-
ton v. Corrigan, 151 N. Y. 143 ; Underhill v. S. & W. R.
R. Co., 20 Barb. 455 ; Fonda v. Sage, 46 Barb. 109 ; Towle
v. Remsen, 70 N. Y. 312 ; Nlchol v. N. Y. t& E. R. R. Co.,
12 N. Y. 121.) The city of New York was the owner of the
fee of the old bed of the lake. {Smith v. CijLy of Rochester,
92 N. Y. 463 ; Gouverneur v. Nat. I. Co., 134 N. Y. 355 ;
Deutertnan v. Oainsborg, 9 App. Div. 151 ; Hazelton v.
Webster, 20 App. Div. 177 ; 161 N. Y. 628.) Even if there
remained some right of ownership in the grantors to Wilcox
and his associates a nominal award for the old bed of the
pond is justified. {Sweet v. City of Syracuse, 129 N. Y.
316.)
Haight, J. This proceeding was instituted by the com-
missioner of public works of the city of New York on behalf
of the city, under the provisions of chapter 189 of the Laws
of 1893, to acquire title to Byram pond, a non-navigable body
of water in the town of North Castle, Westchester county, and
to the lands surrounding the same. The commissioners of
appraisal, appointed in the proceeding, made their report, in
which they awarded to the claimant Sarles substantial dam-
ages for his lands surrounding the pond, but only awarded
him one dollar nominal damages for the bed of the pond.
Objection was filed by him to so much of the report as
awarded him only nominal damages for the bed of the pond.
The Special Term sustained the objection and ordered a new
appraisal as to the lands embraced within the pond, and, in
1903.] Matter of Brooxfield. 143
N. Y. Rep.] Opinion of the Court, per Haight, J.
other respects, confirmed the report. The Appellate Division
reversed so much of the order of the Special Term as granted
a new appraisal, and confirmed in full the original report of
the commissioners.
« In the year 1864: one Josiah Wilcox was the owner of a mill
on Byram river, through which flowed the waters from
Byram pond, and John N. Lyon was the owner of the pond,
or of a portion thereof, and of the lands surrounding the same.
Under date of June 28th, 1864, John N. Lyon executed and
delivered to Josiah Wilcox a deed, which was recorded in the
o2ice of the register, Westchester county, in liber 441 of
Deeds, page 298, in which the premises conveyed are described
as follows : " All that certain piece or parcel of land situate
lying and being in the Town of North Castle, County of
Westchester and State of New York bounded and described
as follows, viz.: Southerly by lands of Ebenezer G. Piatt,
westerly by land of the party of the first part, northerly by
lands of Samuel Augustus Lyon and easterly by land of the
party of the first part being all the land on both sides of the
Byram River and Byram Pond that will be overflowed by the
waters of Byram River and Byram Pond in consequence of
the erection of a dam across said Byram River, southerly of
lands hereby conveyed of sufficient height to raise the waters
in Byram Pond eight feet and two tenths above its present
level, and the above described land is conveyed by the party
of the first part to the party of the second part only for the
purpose of being flowed by said pond, and in case the party
of the second part should not use said land for the purpose
above named then the party of the first part his heirs and
assigns shall buy back the land hereby conveyed at such price
as may be agreed upon between the parties to these presents
and in case of a disagreement between the parties, then each
shall choose a disinterested person as umpire and the two
shall choose a third person and the three persons thus selected
shall fix a price on the land which shall be binding between
the respective parties to these presents, their heirs and assigns.
Together with all and singular, the tenements, hereditaments
144 Matter of Brookfield. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 176.
and appurtenances thereunto belonging, or in anywise apper-
taining, and the reversion and reversions, remainder and
remainders, rents, issues and profits thereof," and so on, fol-
lowing the usual form of the ordinary printed deed, and con-
cludes with a covenant to the effect that the party of the
second part may within two years from that date purchase an
additional quantity of land surrounding the pond sufficient to
raise the dam three feet higher upon paying one hundred dol-
lars per acre therefor. Wilcox apparently availed himself of
the provisions of this covenant, for a second deed, bearing
date the 12th day of October, 1864, recorded in liber 549 of
Deeds, page 351, was executed by Lyon to Wilcox, which con-
veys all the land that will be overflowed, being about two
acres, by the waters of Byram river and Byram pond, by the
erection of a dam of sufficient height to raise the water in
Byram pond twelve feet above the present level of the pond.
This deed contains substantially the same description and pro-
visions contained in the former deed, with the exception that
it gives the right to raise the water of the pond twelve feet
instead of eight feet. The city of New York has acquired
the rights of Wilcox in the premises, and the claimant, De
Witt C. Sarles, has succeeded to the title of John N. Lyon.
It becomes important, in the first place, to determine who
is the owner of the pond. If the city of New York is the
owner, then these proceedings were unnecessary, and the
nominal award of one dollar should not have been made.
Both parties claim under John N. Lyon, and it, therefore,
becomes important to determine the construction that should
be given to his two deeds to Wilcox. In describing the land
conveyed, it is stated in the deeds as " being all the land on
both 6ides of Byram River and Byram Pond." It may be
conceded that where a tract of land is conveyed by deed,
described by metes and bounds, that the title to any lake or
pond included within the boundary lines passes with the
uplands to the purchaser. It may also be conceded that the
conveyance of land along a highway, stream or pond in which
the description runs to the highway, stream or pond, the title
1903.] Matter of Brookfield. 145
N. Y. Rep.] Opinion of the Court, per Haight, J.
to the center of such highway, stream or pond will ordinarily
be held to have passed under the grant. But when the
boundary line is along the side, the edge, the border or the
margin of a highway, stream or pond, the parties will be held
to have intended to limit the lands conveyed to that within
such boundary, and not to that which constitutes the bed of
such highway, stream or pond. As, for instance, " along a
stream" means along the center or thread of the stream, while
" along the shore of the stream " means along the edge or
margin of the stream. In the case under consideration the
deed conveys the land on the sides of the pond, and not that
of the pond itself. It is the land bordering upon the waters
of the pond which may be overflowed \>y the raising of the
dam, and not the lands under the waters of the pond already
overflowed. It appears to us that the fair and reasonable
construction of the language used in the deed would exclude
from the, conveyance all the lands within the pond, leaving
the title thereto in the grantor. {Child v. Starr, 4 Hill, 369 ;
Starr v. Child, 5 Den. 599 ; Balsey v. McCormick, 13 N. Y.
296 ; Holloway v. Southmayd, 139 H. Y. 390-413.)
It is now contended that even though the bed of the pond
was not included in the conveyance to Wilcox, the con-
veyance did vest in Wilcox, in fee, a strip of land surround-
ing the pond, by which Lyon cut off his right of access to
and possession of the pond. This brings us to a more minute
consideration of the deeds. The formal parts of the deeds
are those in ordinary use, containing apt words for the con-
veyance of the fee to the lands described. They include all
the hereditaments and appurtenances thereto belonging, as
well as the rents, issues and profits. But when we find pro-
visions in a deed which are inconsistent, the rule is well
settled that those provisions which are written or are unusual,
or those which have received special attention, will be deemed
to express the intention of the parties rather than the printed
or formal portions of the instrument.
John N. Lyon owned a farm of two hundred acres which
he had purchased from Samuel A. Lyon two years before.
10
146 Matter of Brookfield. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 176.
In his deed to Wilcox lie commences by describing his whole
farm, giving the boundaries, and then he limits the amount
intended to be conveyed, with the clause, " being all the land
on both sides of Byram River and Byram Pond that will be
overflowed by the waters of Byram River and Byram Pond
in consequence of the erection of a dam across said Byram
River, southerly of lands hereby conveyed of sufficient height
to raise the waters in Byram Pond eight feet and two tenths
above its present level, and the above described land is con-
veyed by the party of the first part to the party of the second
part only for the purpose of being flowed by said pond." It
is thus apparent that but for the provision above quoted, the
title of Lyon's whole farm passed to and vested in Wilcox.
But the provision limiting the grant to the lands on both sides
of the pond overflowed by water, is inconsisent with the pro-
vision describing the whole farm as conveyed. So also is the
provision that the lands are conveyed " only for the purpose
of being flowed by said pond " inconsistent with the other
provisions of the deed, which would ordinarily be construed
as passing a fee to the land. These clauses are the prominent
and noticeable provisions of the deed. They are its essential
features, the real essence of the contract, and evidently they
are the result of the deliberate thought and agreement of the
parties and express their intention. We, therefore, think they
should be given force and effect in preference to the usual
formal provisions appearing in the deed.
The fee is the greatest interest that can be granted in real
estate. It includes title, the right of possession and the right
to use for any purpose which may be lawful. The limiting
of the use and purpose of the land conveyed to that only of
being flowed by the waters of the pond prohibits the purchaser
from making any other use of it. It does not even give him
the right of possession. lie may erect the dam of the height
specified and he may have the waters collected overflow the
land, but this is the extent of his rights. This does not con-
stitute a fee. At most it is but a mere easement, leaving the
title, possession and use to the grantor, subject only to the
1903.] Matter of Brookfielp. 147
N. Y. Rep.] Opinion of the Court, per Haight, J.
right of flowage created by the deed. The circumstances of
this case are not unlike those which may be found on nearly
every 6tream or river throughout the country in which there
flows sufficient water to turn a wheel. Mills and mill dams
are very numerous, and many grants for the right of flowage
have been made by upper riparian owners, and yet not a case
has been called to our attention in which it was ever held or
claimed that such a grant carried the fee. Our construction
of the provision of these deeds is not only sustained by, but
is strengthened by the circumstances surrounding the parties
at the time they were executed. Wilcox was a millowner
upon Byram river, below the pond. He was seeking addi-
tional power with which to operate his mill. He first procured
the right, by the first deed, to erect a dam eight and two-tenths
feet high; then about three months 'thereafter, probably
before he had completed the construction of the dam, he pro-
cured the further right, by the second deed, to erect the dam
twelve feet high. There was no reason why he should go to
the expense of acquiring the title to the bed of the pond, or
of the fee of the land surrounding it. His purpose was fully
satisfied by acquiring the right to construct the dam of that
height and have the waters collected flow back upon the lands
of his grantor. In the case of Stevens v. Kelley (78 Maine,
445) it was held that the owner of a mill dam on an unnavi-
gable stream, who does not own the bed of the stream above
the dam, has only a qualified interest in the flow of the
water, and the upper riparian owner has the right to posses-
sion, use and occupation, subject to the easement of the mill-
owner's right of flow, and "that the riparian owner is the
owner of the ice which forms upon the pond and has the
exclusive right to harvest the same.
It is contended that the provisions in the deeds to the effect
that in case' Wilcox should not use the lands for the purposes
mentioned, Lyon, or his heirs and assigns, "shall buy back
the lands hereby conveyed," creates a condition subsequent,
in which a fee may vest. Of course a condition subsequent
embraced in the deed does not prevent a vesting of the fee,
148 Matter of Brookfield. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 176.
but this is upon the assumption that a fee was intended to be
conveyed. If no fee was intended there could be none to
vest. But is it a condition subsequent ? There is no for-
. feiture provided for or any re-entry authorized upon the
happening of such event. It is merely a mutual agreement
of the parties, of Wilcox to sell and of Lyon, or his heirs
and assigns, to buy back that which had been conveyed
to Wilcox, upon a price to be agreed upon or settled by
arbitration. Wilcox had the right to demand that Lyon
should take the same, as well as Lyon had the right to insist
upon his right to purchase. The covenants were mutual and
could be enforced by either. But whether it may be a con-
dition subsequent or not, it does not appear to us to affect
the main question considered as to the interest that the parties
intended to convey by the deeds in question.
Upon the argument of this appeal there was an elaborate dis-
cussion as to the rule of damages that should be adopted. We
do not deem it necessary at this time to enter upon a discus-
sion of that question. The conclusion which we have reached
is that the deeds to Wilcox did not convey to him the fee to
the lands above the dam, but that it did convey the right to
maintain the dam and to flow the waters collected therein
upon the land that would be covered thereby ; that, subject
to this right, Lyon remained the owner of the fee, to not only '
the bed of the pond but to the lands covered by the flow-
age, with the right to the possession and use in connection
with his upland, which were not inconsistent with the right
of Wilcox to the use of the water as the exigencies of his
business might require, and that among the uses retained by
Lyon was that of supplying himself and family with water for
domestic purposes, the harvesting of ice, etc. The city of
New York, as we have seen, has acquired Wilcox's right to
maintain the dam and to use the waters collected and stored
therein. For this Lyon has already received a compensation
in the consideration given for the deeds. Sarles is not, there-
fore, entitled to recover damages therefor. But he had the
right to use the pond in connection with his upland for the
1903. J Matter of Brookfield. 149
N. Y. Rep.] Dissenting opinion, per Bartlett, J.
purposes stated, together with the right to repurchase the
interest conveyed, as provided for in the deeds ; and these
rights are real, entitling him to substantial damages upon their
being taken from him, pursuant to the provisions of the act
under which these proceedings were instituted.
We, therefore, conclude that the order of the Appellate
Division should be reversed, that of the Special Term affirmed,
and that the costs in this court and in the Appellate Division
should be awarded to the appellant ; the other costs in the
proceeding to abide the final award of costs.
Bartlett, J. (dissenting). The deeds to Wilcox, in my
opinion, conveyed the absolute fee of the premises described
subject to a condition subsequent.
No particular form of words is necessary to create a condi-
tion subsequent, but the cases hold it must be clearly expressed.
{Lyon v. Ilersey, 103 N. Y. 264; TJpbujton v. Corriffan, 151
N. Y. 143.)
The premises in question were to be used for flowage pur-
poses, and the deeds provide if not so used then the grantor,
his heirs and assigns, " shall buy back the land hereby conveyed
at such price as may be agreed upon between the parties to
these presents." A clause then follows for umpires to fix
price if parties fail to agree.
It is a little difficult to comprehend how grantors can " buy
back" land unless title passed under their conveyance.
I vote for affirmance.
Parker, Ch. J., O'Brien and Werner, JJ., concur with
Haiqht, J. ; Gray and Cullen, JJ., concur with Bartlett, J.
Order reversed, etc.
150 Brink v. Stratton. [Oct.,
Statement of case. [Vol. 176.
Leander Brink, Respondent, v. William D. Stratton et ah;
Appellants.
1. Evidence— Competency op Facts Showing Hostility op Wit-
ness. Testimony of a party as to the hostility of witnesses called to
impeach him is competent for the purpose of affecting their credibility.
2. Religious Beliep op Witness. A witness cannot be interrogated
as to his belief in the existence of a Supreme Being, who would punish
false swearing, for the purpose of affecting his credibility.
Brink v. Stratton, 64 App. Div. 834, reversed.
(Argued June 16, 1903; decided October 6, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the second judicial department, entered
October 17, 1901, affirming a judgment in favor of plaintiff
entered upon a verdict and an order denythg a motion for a
new trial.
The nature of the action and the facts, bo far as material,
are stated in the opinion.
Abram F. Servin and Thomas Watts for appellants.
The court erred in refusing the testimony of Corey offered to
show bias in witnesses called to impeach him. {People v.
Brooks, 131 K Y. 321 ; Zamb v. Lamb, 146 N. T. 317 ;
Schultz v. T. Ave. R. R. Co., 89 K Y. 242; People v.
Mather, 4 Wend. 229.) The question allowed as to Corey's
religious belief and the charge of the court upon that point
were erroneous. (Stanbro v. Hopkins, 28 Barb. 265.)
William Vanamee and John F. Bradner for respondent.
The rulings upon the testimony as to Corey's bad character were
correct. (Gale v. N. Y. C. <& II. R. R. R. Co., 76 N. Y.
594.) The questions asked Corey as to his regard for the
sanctity of an oath and the charge of the court upon this sub-
ject were proper. (Stanbro v. Hopkins, 28 Barb. 267 ; 1 Rice
on Ev. 548, 549 ; Free v. Btickingham, 59 N. H. 225 ; Peo-
ple v. Braun, 158 K Y. 569 ; G. W. T. Co. v. Zoomis, 32
N. Y. 127; LaBeau v. People, 34 N. Y. 230.)
L
1903.] Brink v. Stratton. 151
N. Y. Rep.] Opinion of the Court, per Martin, J.
Martin, J. This action was to recover upon a joint and
several promissory note made by the defendants Stratton,
Brown, aud the firm of Corey <fc Co., of which Corey is sur-
viving partner. It was payable to the plaintiff or his order.
The defendants Stratton and Brown answered the complaint,
and, among other defenses, alleged that the note in suit had
been paid by the defendant Horace W. Corey or the firm of
Corey & Co. The defendants' evidence was to the effect that
it had been paid by giving another note made by Corey &
Co. alone which was discounted at a bank, renewed from time
to time, and ultimately taken up and paid by the plaintiff.
That it was received in payment by the plaintiff was denied
by him, and that issue was submitted to the jury which found
a verdict in his favor. The judgment entered upon the ver-
dict was unanimously affirmed by the Appellate Division, so
that the only questions which are presented upon this appeal
arise either upon rulings rejecting or admitting evidence, or,
upon exceptions to the charge of the trial court.
The first error alleged by the appellants is the refusal of
the court to permit the defendant Corey to testify as to the
relations between himself and three witnesses, Stivers, Boyd
and Wilbur, who were called on the trial to impeach his
character for truth and veracity. As to the witness Stivers
he was asked : " While yon were publishing a paper and he
was publishing one were you good friends ? [Objected to as
improper. Objection sustained. Defendants except.] " As
to the witness Boyd he was asked : " Was Mr. Boyd opposing
you and you opposing Mr. Boyd for a number of years in
your papers ? [Objected to as i mproper. Objection sustained .
Defendants except.] Q. Each one attacking the other through
the paper ? [Same objection, ruling and exception.] " As to
the witness Wilbur he was asked : " What have been the rela-
tions between you and Mr. Wilbur ? [Objected to. Objec-
tion sustained. Defendants except.] Q. Was Mr. Arthur
(Wilbur) at one time superintendent of schools? A. He was.
Q. Did your paper attack him? [Objected to. Objection
sustained. Exception.] Q. I will ask you whether or not by
152 Brink v. Stratton. ( [Oct.,
Opinion of the Court, per Martin, J. [Vol. 176.
reason of the position of the c Forum J against Mr. Wilbur,
whether or not lie was defeated as superintendent of the
schools ? [Objected to. Objection sustained. Exception.] "
That it was competent to prove the hostility of any or all
of these witnesses towards the defendants or either of them
by their cross-examination or by other testimony ; that it was
not necessary that the witness should be first examined as to
his hostility before calling other witnesses, and that the
examination of other witnesses is not limited to contradicting
him in case he denies hostility, is well established by the deci-
sions in this State. (Starks v. People, 5 Denio, 106 ; People
v. Brooks, 131 K Y. 321 ; Garnsey v. Rhodes, 138 N. Y.
461, 467; People v. Webster, 139 N. Y. 73, 85; Lamb\.
Lamb, 146 N. Y. 317.)
In People v. Brooks it was held that the hostility of a wit-
ness towards a party against whom he is called may be proved
by any competent evidence, either by cross-examination of the
witness or by the testimony of other witnesses ; and that it is
not necessary that the witness should first be examined as to
his hostility before calling other witnesses, and the examination
of other witnesses is not limited to contradicting him in case
he denies any hostility. The extent, however, to which an
examination may go for the purpose of proving the hostility
of a witness must be, to some extent, at least, within the dis-
cretion of the trial judge. It should be direct and positive,
and not very remote and uncertain, for the reason that the
trial of the main issue in the case cannot be properly suspended
to make out a case of hostile feeling by mere circumstantial
evidence from which such hostility or malice may, or may not,
be inferred. (Schultz v. Third Ave. B. B. Co., 89 K Y. 242.)
The decision Li the Brooks case was followed in Garnsey v.
Bhodes, People v. Webster and Lamb v. Lamb.
In the Garnsey case a witness was asked whether there had
been any disagreement between him and the plaintiff's archi-
tects, between whom and the plaintiff a conspiracy was alleged.
The evidence was objected to and excluded. This was held
error and the court there said : " The object of the defense
1903.] Brink v. Stratton. 153
N. Y. Rep.] Opinion of the Court, per Martin, J.
was to charge the plaintiff with the consequences of a con-
spiracy between him and the architects, and it was, therefore,
quite as material and important for the plaintiff to show that
the witness by whom it was sought to establish the unlawful
combination was hostile to one of the parties to it as it would
have been to have shown hostility on his part towards the
plaintiff himself. The admission or rejection of the evidence
was not discretionary with the trial court." " It was not
there (in People v. Brooks) held, as the counsel for the
defendant seems to suggest, that it was in the discretion of
the court, whether such questions should be allowed. All
that was said upon the point was that the extent to which
such an examination may go must be in some measure within
the discretion of the trial judge. This must be so or else it
might become interminable. But here the whole inquiry was
ruled out. Even general questions were disallowed, and, as
it must be assumed, for the purposes of this appeal, that if
answered, the responses would have shown bias, the plaintiff
may have been prejudiced by the exclusion of the evidence."
If Corey is to be regarded as a party to this action, then
clearly within the doctrine of that case the evidence offered
by the defendants as to the relations between Corey and the
witnesses called was admissible. It will be remembered that
the witness was asked as to Stivers whethejr he and Stivers
were good friends while publishing opposition papers. As to
Boyd the inquiry was if they were opposing each other for a
number of years in their papers, and as to Wilbur he was
asked what had been the relations between them. All these
questions were objected to as improper and the objection was
sustained. Corey was named as defendant in the summons
and complaint, but did not appear either in person or by
attorney. He was, however, called as a witness by the
defendants and gave material testimony upon the trial. The
three witnesses mentioned were called to impeach his charac-
ter for truth and veracity and testified that it was bad. Corey
was then recalled and the proof as to the hostility of those
witnesses to him was offered and excluded. Thus the ques-
154 Bbink v. Stratton. [Oct.,
Opinion of the Court, per Maktot, J. [Vol. 176.
tion presented is whether the defendants were entitled to
prove the relations between those witnesses and Corey as
affecting their evidence as to his general character. We
think they were. The question of his character was thus
placed in direct issue. To that issue the evidence rejected
was plainly directed, and the proof offered was admissible
within the principle of the cases already cited, especially the
cases of Storks v. People (5 Denio, 106), where it was held
that a party has a right to impeach a witness f &r his adversary,
though the testimony of such witness related solely to the
general character of another witness, and Garnsey v. Rhodes y
where the hostility which was sought to be proved was
between the architects employed by the plaintiff and the
principal witness for the defense. In this case the direct
purpose of the evidence was to show that the witnesses who
had testified to the bad character of Corey were hostile to
him, the party against whom they had testified, and, hence,
their evidence was not entitled to the credit it otherwise
would have been and was, we think, plainly admissible.
The next exception urged by the appellants is to the rulings
of the court rejecting the evidence of the defendant Corey as
to whether he was financially responsible at the time the
note which was put in the bank was delivered to the plaintiff.
The issue was whether the note in suit had been paid by the
delivery and acceptance of a note made by Corey & Co.
That question in the case depended upon the direct evidence
of the parties, and even if the defendant Corey was finan-
cially responsible, it is hardly evidence that the plaintiff would
have surrendered a note upon which there were two other
makers who were responsible, even if the defendant Corey
was. We think this exception is insufficient to justify an
interference with the judgment.
The only remaining exceptions that need be considered are
whether the court properly overruled the defendants' objec-
tion to the plaintiff's question whether the witness Corey
believed in the existence of a Supreme Being who will pun-
ish false swearing, and to the charge of the court upon that
1903.] Brink v. Stratton. 155
N. T. Rep.] Opinion of the Court, per Martin, J.
evidence. The question was objected to as improper, imma-
terial and irrelevant. The objection was overruled and the
defendants excepted. The answer was: "I do not know
anything about it I am sure. N * * * I will reply that I
am an agnostic. I have no belief on that subject at all. I do
not know anything about it." The court in charging the
jury said : " Tt is for you to say how far you are to attach
credibility to his (Corey's) statements, how far his testimony
is impeached as to what he has said here in regard to his
religious beliefs." This charge was excepted to by the defend-
ants. That question is not an open one in this court. Iu
People v. Most (128 N. Y. 108) it was directly involved and
distinctly decided. One of the points made by the appel-
lant's counsel in this court was that " The court erred in per-
mitting the district attorney to interrogate each witness for the
defense as to his religious belief, and in not stopping the dis-
trict attorney in his summing up to the jury when he said
that the jury should not believe the defendant and his wit-
nesses because some of them testified that they did not believe
in the Supreme Being." At the threshold of his opinion in
that case Judge Andrews stated that " But three of the
questions presented on the brief of the appellant's counsel
can be considered on this appeal. One of these questions is
raised by the exception to the denial by the trial judge of the
motion of the counsel for the defendant, made at the conclu-
sion of the evidence on the part of the People, for an instruc-
tion to the jury to acquit the defendant on the ground that
the evidence was legally insufficient to justify a conviction.
An exception was taken to a question put to a witness by the
defendant on cross-examination by the prosecuting officer and
which was allowed by the court, as to his belief in a Supreme
Being. A third exception was taken to evidence offered by
the prosecution and admitted, that the persons present at the
meeting at Kramer's Hall on the evening of November 12,
1887, were anarchists."
After discussing the first and third questions the court held
that the evidence was sufficient to bring the case within the defi-
156 Brink v. Stratton. [Oct,
Opinion per Cullen, J. [Vol. 176.
nition of the statute, and that the proof that the persons present
at the meeting at Kramer' Hall were anarchists, was properly
admitted. As to the second exception, which was to the
question as to the witness' belief in a Supreme Being, the
court said : " The exception to the question put to the witness
on cross-examination as to his belief in a Supreme Being is
frivolous." Thus it is perfectly manifest that the question
whether it was competent to interrogate a witness as to his
belief in a Supreme Being was directly involved and squarely
decided by this court in that case. It is also manifest that if
a contrary view had been taken upon that question, which
was certainly presented, it would have required a reversal of
the judgment, and, as the judgment was unanimously affirmed,
it is plain that the question was passed upon in that case.
Therefore, unless our decision in that case is to be overruled,
the judgment in this case cannot be reversed upon that
ground.
We are, however, of the opinion that the court erred in
rejecting the evidence of the witness Corey as to the hostility
of the impeaching witnesses, and for that error alone the judg-
ment should be reversed.
Cullen, J. I concur in the opinion of Judge Martin that
the trial court erred in not permitting the defendant, when
examined as a witness on his own behalf, to testify as to the
state of the relations existing between himself and several
witnesses for the plaintiff. But there was further error com-
mitted on the trial. On cross-examination the defendant
Corey was asked, against the objection and exception of his
counsel, whether he believed in the existence of a Supreme
Being who would punish false swearing, to which he replied
that he knew nothing about it ; that he was an agnostic and
had no belief on the subject at all. In submitting the case to
the jury the learned County Court charged : " It is for you to
say how far you are to attach credibility to his (Corey's) state-
ments, how far his testimony is impeached as to what he has
said here in regard to his religious beliefs," to which comment
1903.] Brink v. Stratton. 157
N. Y. Rep.] Opinion per Cullen, J.
and instruction the appellants excepted. I think that these
rulings also were erroneous. S.
At common law no one but a Christian was a competent
witness, and, as testimony could be given only under the
sanction of an oath, even Christians (such as Friends and
others) who deemed the taking of an oath unlawful were
necessarily excluded from testifying. The common-law rule
was relaxed from time to time, either by statute or by judicial
decisions, until as the law stood in this state prior to the
adoption of the Constitution of 1846 : " Every person believ-
ing in the existence of a Supreme Being who will punish false
swearing, shall be admitted to be sworn, if otherwise com-
petent." (2 R. S. 408, § 87.) And it was further enacted by
the legislature that " no person shall be required to declare his
belief in the existence of a Supreme Being, or that he will
punish false swearing, or his belief or disbelief of any other
matter, as requisite to his admission to be sworn or to testify
in any case. But the belief or unbelief of every person offered
as a witness may be proved by other and competent testimony."
(Id. 408, § 88.) It was immaterial whether the witness believed
that Divine punishment would be inflicted in this world or in
the next. (1 Greenl. E v. § 369.) Though it seems that prior to
the legislation referred to the rule was to the contrary and it was
necessary that the witness believe in a future state of rewards
and punishments. (Jacksofi v^Gridlei/^ 18 Johns. 98 ; Butts
v. Swartwoody 2 Co wen, 431.) But by the Constitution of
1846 there was added to the previously existing constitutional
declaration of religious liberty the further provision : " And
no person shall be rendered incompetent to be a witness on
account of his opinions on matters of religious belief." This
amendment, of course, established the competency of an
infidel or an atheist as a witness. As to this there is no dis-
pute. But it is contended that though the witness may not
be excluded from testifying by reason of being an infidel, he
may be interrogated as to his belief, and his infidelity be con-
sidered by the jury on the question of his credibility. This
was so held by the Supreme Court in Stanbro v. Hopkins
158 Brink v. Stratton. [Oct.,
Opinion per Cullen, J. [Vol. 176.
(28 Barb. 265), though the declaration was obiter, the judg-
ment having been reversed on another point. The same view
was taken by this court without discussion in People v. Most
(128 N. Y. 108). The question has arisen in other states. In
Iowa the rule in the Stanbro case seems to have been adopted.
{Searcy v. Miller, 57 Iowa, 613 ; Stole v. Elliott, 45 id. 486.)
On the other hand, in Virginia and in Kentucky, under con-
stitutional provisions not as explicit as our own, but enacting
liberty and equality of religious belief, it has been held that
a witness cannot be interrogated as to his belief in the exist-
ence of a Deity or a future state for the purpose of affecting
his credibility. {Perry v. Commonwealth, 3 Grattan, 632:
Bush v. Commonwealth, 80 Ky. 244.)
The record of the proceedings of the convention by which
this constitutional provision was formulated shows that the
view taken by the Virginia and Kentucky courts is the cor-,
rect one. The provision was the subject of discussion and
debate and was not adopted without opposition. The member
who introduced the provision (Mr. Taggart, of Genesee) said
that he had known the question of a witness's belief in a
Supreme Being being raised but once, and trusted that he
should never see it raised again. But, he said, if there was
anything in this, "let it go to the jury ; let it go to his credit
and not to his competency." Acting on this suggestion
another member moved an amendment : " Bnt evidence may
be given as to the belief or disbelief of the witness in the
obligation of an oath and of the grounds of such belief or
disbelief, in order to enable the jury to judge of his credi-
bility." This amendment was rejected by a vote of 92 to 12.
(Crosswell & Sutton Debates, pp. 808, 809.) It may be
worthy of notice that the convention at the same time struck
out the provision of the then existing Constitution which dis-
qualified ministers from holding office, thus making the
divorce between the state and religious creeds complete.
Therefore, upon the adoption of the Constitution of 1846
by the people, a witness could not be excluded by reason
of his religious belief or unbelief, nor under the statute
1903.] Brink v. Stratton. 159
N. Y. Rep.] Opinion per Cullkn, J.
could he be interrogated on that subject. The learned court
iu the Siwiibro case said with entire truth that though a
witness may be competent his credibility may be impaired.
It then argued that in analogy to the case of a party to an
action who is now a competent witness, but whose interest
in the cause goes to his credibility, so the religious belief
of a witness, while not rendering him incompetent, might be
considered on the question of the credit to be accorded him.
I think the learned court was misled by a false analogy.
Interest in the subject-matter and relationship to the parties
are temporal and mundane influences which common experi-
ence teaches us tend to bias consciously or unconsciously the
testimony of witnesses. But such is not naturally the result
of abstract religious belief. I think that the decision of this
court in Gibson v. Am. Mutual Life Ins. Co. (37 N. Y. 580)
is controlling on that question. That was an action on a life
insurance policy, one of the defenses being suicide. Evidence
offered by the defendant to show that the insured was an
atheist was excluded. The ruling of the trial court was
upheld on the ground that a man's probable course of action
could not be predicated from his religious belief. It was
there said by Judge Hunt : " In what way, and how far do
these statements of belief operate upon the conduct of man ?
Is it certain that he who believes in the eternal punishment
of the impenitent, in a future world, is a better observer of
the laws of his country, and more free from actual crime,
than he who denies that doctrine ? Or is it certain that he
who believes in the final salvation of all men would refrain
from an offense which he would have committed had he
believed that there was no future state ? No man can answer
with certainty." The truth of this statement is apparent
when it is borne in mind that at all times men have been
found to unfalteringly meet death rather than deny their
religions faith, who could not be induced to conform their
lives to the cotpmands of that religion for a week continu-
ously. All that was written by Judge Hunt in the case cited
applies with far more force to the case before us. The light
] 60 Brink v. Stratton. [Oct.,
Opinion per Cullbn J. [VoL 176.
in which suicide was viewed by Pagan ethics differs widely
from the judgment passed on that act by the Christian
religion. While there were not wanting philosophers or
moralists in the old world to condemn the act, they were
the exceptions. But the Christian religion declared that
suicide was a " mortal " sin, and there can be no doubt that
it is due to belief in that religion that a practice once
common has substantially ceased, though sporadic instances
still occur. (See 1 Lecky European Morals, 233 et seq.)
Indeed, one of the grounds of attack on Christianity by
the great apostle of modern pessimism is what he con-
tends to be its false view of suicide. (Schopenhauer's Essays.)
The argument was, therefore, not without force, that an infi-
del or an atheist would be more likely to commit suicide than
a Christian. But I know of no system of religion or code of
ethics at any time generally prevalent in the world that has
failed to condemn falsehood or to hold truth as a virtue.
It has been seen that in the condition of the law just prior
to 1846 the only religions view that excluded a witness was
failure to believe in Divine punishment. Thus fear was
deemed the only influence by which veracity in witnesses
could be assured. If, despite the constitutional enactment
that no such test of competency shall longer prevail, inquiry
on the subject is still to be made with reference to the wit-
ness' credibility, I think we may be led into great embarrass-
ments. I do not see why a witness who declares merely his
ignorance as to whether there is or is not a Deity who will
punish false swearing is less amenable to fear than one who
believes that his future state, whether of salvation or punish-
ment, has been decreed from all eternity regardless of faith or
good works. Yet the denomination holding this doctrine in
its confession of faith has given to American history at
least as many great names as any other religious sect. I think
that the learned court in the Staiibro case failed to appre-
ciate that when the Constitution abrogated all disqualifications
from office or civil rights, the consideration of a witness's relig-
ious belief on the question of his credibility necessarily fell at
1903.] Brink v. Stoat-ton. 161
N. Y. Rep.] Opinion per Cullen J.
the same time. On the trial of a cause, as is pointed ont by
the Supreme Court of Virginia, the judge may be a skeptic
or an infidel and the juror an agnostic or an atheist ; neither
can be excluded for that reason from sitting in judgment. Is
it possible that we would uphold the submission to a jury of
a witness's belief in Christianity as impairing his credibility ?
It is said by one of the learned judges in the Staribro case
with reference to the practice of interrogating a witness as to
his religious belief : " I have no fears that this rule will encour-
age parties to scandalize truly religious witnesses by imputa-
tions that they profess the worst of creeds. For so long as no
religious test shall be required for judges and jurors, parties
will be loath to cross-examine witnesses as to their opinions on
matters of religious belief unless they are well assured the
opinions of the witnesses are very obnoxious to the sentiments
of citizens vh° 8ay with Pope :
' For modes of faith let graceless zealots fight,
He can't be wrong whose life is in the right. ' "
That which the learned judge considered a safeguard against
the abuse of the practice, to me constitutes its danger.
Doubtless, no wise advocate will interrogate a witness as to liis
religious faith unless it is obnoxious and unpopular in the
community. But that is the very case in which the exposure
of a witness's religious belief would probably lead to injustice.
It is somewhat singular that shortly after the adoption of the
Constitution of 1846 abolishing all religious tests or disqualifi-
cations, religious animosities, it is true not standing alone, but
connected with questions of race and nationality, reached the
highest pitch ever known in this country, not only affecting
the action of political parties, but leading in many cases to
riot and the destruction of property. I think that no one who
remembers that period will deny that during the prevailing
prejudice and passion a witness professing the unpopular faith
might have found himself, in some parts of the country, as much
discredited by a jury, or some members of it, as an agnostic
or atheist would now be. It is true that the feelings then
existing have entirely or almost entirely subsided. It is also
11
162 Brink v. Stratton. [Oct.,
Opinion per Cullen, J. [Vol. 176.
true, as said by Bacon, that a religion of negation only is not
apt to draw to itself many or enthusiastic adherents, and it
may be added that for this reason it is not likely to excite the
most violent antipathies. But the principle involved here is
in itself important, and the rale declared by the court, in my
judgment, wrong. Unfortunately, religious animosities are
easily aroused, and we should not give sanction to a principle
that may hereafter work great injustice.
I do not say that no examination into a witness's religion
can at any time be had. The religious creed of a person
may not deal exclusively with his relations to his Creator,
but may enjoin acts forbidden by law or forbid compli-
ance with the law. The weight of authority seems to be
that the Thugs in India committed their crimes under the
direct sanction if not command of their religion. Of course,
a witness may be interrogated as to whether be thinks it
wrong to give false testimony, whether his religion requires
him to commit a crime. These inquiries relate to temporal
matters, not to spiritual or theological ones. So also a witness
may be asked whether he is a member of the same church as
that of one of the parties. This also involves no direct inquiry
into his religious belief, but only as to his associations. Experi-
ence teaches us that we may be biased in favor of our associ-
ates, whether in a church, in a club or in a business institution.
Possibly the most " obnoxious " religions faith to-day is that
of the Mormons. In a prosecution for polygamy a witness
might properly be asked whether he was a Mormon, and
whether hip religion did not enjoin or, at least, approve that
practice. But when a Mormon sues on a bill for groceries, in
ray judgment it is neither constitutional nor reasonable to
interrogate him on the subject of his belief for the purpose of
exciting prejudice against him.
The judgment appealed from should be reversed and a new
trial granted, costs to abide the event.
Bartlett, Haight, Vann and Werner, JJ., concur with
Cullen, J., who agrees with Martin, J., as to ground for
reversal ; Parker, C. J., concurs with Martin, J., fully.
Judgment reversed, etc.
1903.] Walsh v. Central N. Y. Tel. & Tel. Co. 163
N. Y. Rep ] Statement of case.
Dennis Walsh, Respondent, v. Central New York Tele-
phone and Telegraph Company, Appellant.
1. Negligence —-When Contributory Negligence a Question of
Fact. A bicyclist riding after dark between two rails of a railroad track
upon a public street in which a trench was being excavated about three
feet from the track, along which a manhole was constructed extending to
within a foot of the track, which street was closed upon that side by bar-
ricades upon which at intervals red lights had been placed, who, in order
to avoid another bieycle and a car upon the other track coming from the
opposite direction, turns out and, attempting to proceed upon the strip
between the track and the trench, falls into the manhole and is injured,
is not as matter of law guilty of contributory negligence.
2. Degree of Care. Ordinary care or precaution to avoid danger
must be commensurate with the danger and will dictate and require a
degree of vigilance under one set of circumstances that would be unneces-
sary under another. A refusal to charge, therefore, upon the trial of an
action to recover damages for the injury, that the red lights and the dirt
thrown up in the excavation of the trench indicated that there was dan-
ger, and that the plaintiff was bound to exercise unusual care in passing
that locality, and that by unusual care was meant greater care than would
be required in passing over a street without obstacles and in which
excavations did not appear, constitutes reversible error.
Walsh v. Central If. T. Tel. & Tel. Co., 75 App. Div. 1, reversed.
(Argued June 25, 1908; decided October 6, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
July 23, 1902, affirming a judgment in favor of plaintiff
entered upon a verdict and an order denying a motion for a
new trial.
The nature of the action and the facts, so far as material,
are stated in the opinion. *
Edwin Nottingham for appellant. The evidence fails to
show any negligence on the part of defendant, and its motion
for a nonsuit on that ground should have been granted.
(Nolan v. King, 97 N. Y. 565 ; Thieme v. Gillen, 41 Hun,
443 ; Parker v. City of Cohoes, 10 Hun, 531 ; 74 N. Y. 610 ;
Lane v. Wheeler, 35 Hun, 606.) There is no evidence that
plaintiff exercised any care in passing along the street, and
164 Walsh v. Central N. Y. Tel. & Tel. Co. [Oct,
Opinion of the Court, per Cullen, J. [Vol. 176.
the evidence shows that he was guilty of negligence which
contributed to his injury, and he should have been nonsuited
on these grounds. ( Weston v. City of Troy, 139 N. Y. 281 ;
Morgan v. Vil. of Penn Yan, 42 App. Div. 582 ; Bowen
v. City of Borne, 23 Wkly. Dig. 406 ; Davenport v. B. C.
R. R. Co., 100 K Y. 632 ; Cummins v. City of Syracuse,
100 N. Y. 637 ; Splittorfw. State, 108 N. Y. 205 ; Whalen v.
C G. L. Co., 151 X. Y. 70 ; Williams v. Vil, of Port Leyden,
62 App. Div. 490 ; Belton v. Baxter, 54 N. Y. 245 ; Albring
v. IT. Y. C & H. It. R. R. Co., 46 App. Div. 460 ; Dubois
v. City of Kingston, 102 N. Y. 219.) The trial court erred
in its charge to the jury and in its refusals to charge as
requested by defendant, and for these errors the judgment
should be reversed. {City of Richmond v. Leaker, 99 Va. 1.)
James Devine for respondent. Defendant was guilty of
negligence. {Thurber v. R. B., M. cfe F. R. R. Co., 60 N.
Y. 331 ; Wendell v. N. Y. C. dk II. R. R. R. Co., 91 N. Y.
141 ; Chisholm v. State, 141 N. Y. 246 ; Isham v. Post, 141
N. Y. 100, 107 ; Lane v. City of Syracuse, 12 App. Div. 118 ;
Donnelly v. City of Rochester, 166 N. Y. 315 ; Deming v. T.
R. Co., 169 N. Y. 1 ; Snowden v. Town of Somerset, 171 N.
Y. 99.) The plaintiff was not guilty of contributory negli-
gence. "Whether or not he was guilty was a question of fact for
the jury. {Greany v. Z. L R. R. Co., 101 N. Y. 419 ; Kettle
v. Turl, 102 N. Y. 255 ; Weber v. Railroad Co., 58 K Y. 453 ;
Eastland v. Clark, 165 N. Y. 420; Snowden v. Town of
Somerset, 171 N. Y. 99.) The trial court did not err in its
charge to the jury and in its refusal to charge, as requested
by the defendant. {Morehouse v. Yaeger, 71 N. Y. 594 ; Fay
v. O'Neil, 36 N. Y. 11; Rulofv. People, 45 N. Y. 213;
Feeney v. L. I. R. R. Co., 116 N. Y. 379 ; Kellogg v. J\r. Y.
C. dk II. R. It. R. Co., 79 N. Y. 76 ; Griffen v. Maniee, 166
N. Y. 191.)
Cullen, J. The action was brought to recover for dam-
ages for personal injuries. At the time of the accident the
L
1903.] Walsh v. Central N. Y. Tel. & Tel. Co. 165
N. Y. Rep.] Opinion of the Court, per Cullen, J.
defendant was engaged in laying a subway or conduit in South
Salina street, in the city of Syracuse. The street runs
north and south, and in the middle of it is laid a double-track
street railroad. For the purpose of laying the conduit the
defendant had excavated at a distance of about three feet west
of the westerly rail a trench two feet in width and varying m
depth from two and a half to three and a half feet. At points
along the line of the subway manholes were to be constructed.
The one in question, into the excavation for which the plaintiff
fell, was about six feet wide, east and west, and nine feet long,
north and south. The easterly side or line of the manhole was
a little more than a foot from the westerly track. The earth
taken from the trench was cast on its westerly side so as not
to obstruct the movement of the street cars, the running
"boards of which projected from a foot and a half to over two
feet beyond the rails at a height of fourteen inches above the
pavement. The part of the carriageway lying to the west of
the railroad tracks was closed by barricades. The carriage-
way to the east of the tracks, in width eighteen feet, was
wholly unobstructed. On the night on which the accident
occurred red lights were placed at the barricades and also
along the ridge of earth thrown out from the trench. About
half-past eight the plaintiff and his brother were proceeding
on bicycles southerly along the street, the plaintiff riding
between the two rails of the westerly track, his brother in
the space between the two tracks. They encountered another
bicycle and a car proceeding north on the easterly track
Thereupon the plaintiff turned out of the south-bound track
to the three-foot strip between the trench and that track in
order, as he testified, to permit the brother to take his place
in that track and avoid the approaching vehicles. They con-
tinued on their way at a speed of about four miles an hour;
until they reached the manhole into which the plaintiff fell
and was injured. The plaintiff testified that he had noticed
the excavation of the trench, but that he had observed there
was a strip of three feet between the trench and the track
which, in his judgment, was sufficient for him to safely pro-
166 Walsh v. Central N. Y. Tel. & Tel. Co. [Oct.,
Opinion of the Court, per Cullen, J. [Vol. 176.
ceed on his bicycle ; that he did not see the manhole or that
at that point the excavation approached closely to the track
and that there was no light or barrier at that point to give
him warning. At the trial the defendant contended that it
could not place any barrier or lights on the easterly side of
the trench on account of the projection and overhanging of
the running boards of the cars and also that the plaintiff was
guilty of contributory negligence in running his bicycle so
close to the trench. The motion for a nonsuit was denied and
the case submitted to the jury, which rendered a verdict for
the plaintiff. The Appellate Division by a divided court
affirmed the judgment entered on that verdict.
Personally I should incline to the view that the plaintiff in
riding at night so close to the excavation or trench without
being driven to assume that position by any special stress
of circumstances was guilty of contributory negligence as a
matter of law. Doubtless in the absence of any information
or notice to the contrary the traveler has a right to assume that
all parts of the highway are reasonably safe and secure, but
every traveler equally well knows that for very many purposes
it is necessary from time to time to tear up and obstruct
streets, by which the streets or portions of them are rendered
unfit for travel. In such cases it is necessary that barriers,
lights and other appropriate warnings should bo given by
which the traveler is made aware of the condition of the
street. The plaintiff saw the barriers and lights, saw that
the westerly portion of the carriageway was closed to
travel, and that a trench was being excavated through the
street at a distance of three feet from the rail. I do not
think he had the right to assume that there would contiuue
to be a space of three feet between the trench and the rail.
Every one knows that the side of a trench is not main-
tained with the regularity that is to be expected in a face of
masonry. The earth is apt to cave in to a certain extent, and,
therefore, the width of the trench cannot be expected to be
uniform, but necessarily varies. It is also well known that
riding or walking close to the edge of a trench tends to make
1903.] Walsh v. Central K Y. Tel. & Tel. Co. 167
N. Y. Rep.] Opinion of the Court, per Cullen, J.
it cave in. It was dark and the plaintiff could not see the
condition of the street any great distance before him. Know-
ing, therefore, that the street was torn up and appreciating
his inability to see its state at any great distance it seems to
me that ordinary care would have kept him off that side of
the carriageway unless he was forced on to it by the movement
of other vehicles, which was not the case. There was no
reason why he and his brother should necessarily have ridden
abreast. One could have preceded the other in the space
between the rails with entire safety. But a majority of my
associates think the question of the plaintiff's negligence was
one of fact for the jury, and I bow to their judgment. We
all agree, however, that there was error in refusing to charge,
the defendant's request as to the degree of care which the
plaintiff was bound to exercise under the circumstances.
The defendant asked the court to charge that the red lights
and the dirt thrown up in the excavation of a trench indi-
cated that there was danger ; that the plaintiff was bound to
exercise unusual care in passing that locality, and that by
unusual care was meant greater care than would be required
in passing over a street without obstacles and in which exca-
vations did not appear. This the court refused to charge, but
left it for the jury to say whether the plaintiff should have
exercised a greater degree of care. It is true that the obli-
gation resting on the plaintiff was the exercise of ordinary
care, but at the same time the general rule is that care, or,
more accurately, precaution, must be commensurate with the
danger, and ordinary care will dictate and require a degree of
vigilance under one set of circumstances that would be
unnecessary under another. (Thompson on Negligence, sec.
171 ; Griffen v. Manice, 166 N. Y. 188.) It is on this prin-
ciple that the rule of law has become settled in this state that
because a railroad crossing is a place of danger travelers seek-
ing to cross must make vigilant use of their senses to avoid
danger. Assuming that I am wrong in the view that the
danger here was so manifest that it was negligence for the
plaintiff to proceed on the side of the carriageway upon which
168 Taylor v. Thompson. [Oct.,
Statement of case. [Vol. 176.
was the excavation, it was at least sufficiently obvious to require
of him to exercise special care. We think that the defendant
was entitled to have that proposition specifically charged.
The jndgment should be reversed and a new trial granted,
costs to abide the event.
Parker, Ch. J., O'Brien, Bartlett, Vann and Werner,
JJ., concur ; Martin, J.5 absent.
Judgment reversed, etc.
William A. Taylor, Appellant, v. Robert H. Thompson
et al., Respondents.
1. False Representations — Action for Damages Will Not Lib
Between Members of Two Firms Having One Member Common to
Both. One induced by the false representations of a member of a firm
to purchase the interests of his copartners and take their place in a new
firm, to be composed of himself and such partner, cannot individually
maintain an action against the firm to recover the damages alleged to have
resulted therefrom; nor can it be maintained by the new firm, since an
action at law for deceit will not lie between members of two firms having
one member common to both. If any cause of action exists, the rights of
the parties must be adjusted by a court of equity.
2. When Firm Not Liable for False Representations of Partner.
Where upon the trial of such an action it appears that the partner making
the false representations acted independently in negotiating the sale and
principally and primarily for his own benefit and not as agent of the firm,
his associates cannot be held liable in any event.
Taylor v. TJiompson, 74 App. Div. 320, aftlrmed.
(Argued June 22, 1903; decided October 6, 1908.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered July
24, 1902, affirming a judgment in favor of defendants entered
upon a verdict directed by the court.
The nature of the action and the facts, so far as material,
are stated in the opinion.
Austen G. Fox and William D. Leonard for appellant*
It was at least a question of fact for the jury whether or not
1903.] Taylob v. Thompson, 169
N. T. Rep.] Statement of case.
Culbert was the agent of the defendant. (Lindmeir v. Mono-
han, 64 Iowa, 24 ; Lindley on Part. 167 ; Lovett v. Hicks,
2 G. & C. 46 ; Taylor v. Thompson, 62 App. Div. 170 ; Ahem
v. Goodspeed, 72 N. Y. 108; Bradner v. Strang, 114 TJ. S.
555; Barwick v. & J S. Bank, L. R. [2 Ex.] 259 ; Mackay
v. C. Bank, L. R. [5 P. C] 394; Swire v. Francis, L. R. [3
App. Cas.] 106 ; Hoxddsworth v. Glasgow Bank, L. R. [5
App. Cas.] 317 ; Indianapolis, etc., By. Co. v. Tyng, 63 N.
Y. 653.) Culbert made false representations to plaintiff.
Plaintiff relied upon them to his damage. (Sandford v.
Bandy, 23 Wend. 260 ; FairchUd v. McMahon, 139 N. Y.
290 ; Townsmd v. Felthousen, 156 K Y. 618 ; Mead v.
Bunn, 32 N. Y. 280 ; Simar v. Canaday, 53 K". Y. 306 ;
Hadcock v. Osmar, 153 N. Y. 608 ; Rothschild v. Mack, 115
N. Y. 7; iTtms v. Kennedy, 147 N. Y. 130; Redgrave v.
J?wrrf, L. R. [20 Ch. Div.] 13.) The respondents received
and retained all the benefits of the contract obtained by Cul-
bert's fraud, and are bound to compensate the injured plain-
tiff. {Mayor v. Deem, 115 N. Y. 556, 561, 562 ; Bennett v.
Judson, 21 N. Y. 538 ; Hathaway v. Johnson, 55 N. Y. 96 ;
Sandford v. Handy, 23 Wend. 260 ; Griswold v. Haven, 25
N. Y. 595 ; /. P. C. R. Co. v. Tyng, 63 N. Y. 653 ; Ins. Co.
v. Minch, 63 N. Y. 145 ; Krumm v. Beach, 96 N. Y. 398 ;
Janes v. Jewww, 120 N. Y. 598.)
John J. Crawford for respondents. The action cannot be
maintained for the reason that it is brought upon the joint
claim of Culbert & Taylor, and is based upon Culbert's own
fraud. (Medbury v. Watson, 6 Mete. 246 ; Patten v. Gur-
ney, 17 Mass. 182 ; Prouty v. WJiipple, 10 Wkly. Dig. 387
Mosgrove v. Golden, 101 Penn. St. 605 ; Englis v. Furniss,
4 E. D. Smith, 587 ; Yeamans v. Bell, 151 1ST. Y. 230 ; Bosan
quet v. Wray, 6 Taunt. 597 ; Jones v. Yates, 9 B. & C. 532
Schnaier v. Schmidt, 13 N. Y. Supp. 725 ; Mangles v.
Sherer, 21 App. Div. 507.) Culbert was not the agent
of the respondents, and had no authority to make repre-
sentations on their behalf, and the appellant had notice of this
170 Taylor v. Thompson. [Oct.,
Opinion of the Court, per Bartlett, J. [Vol. 176.
from the circumstances of the case. ( Udell v. Atherton, 7 H.
& N. 172.) The respondents are not in the position of one
who has profited by the fraud of an agent, but, on the con-
trary, the appellant seeks through the fraud of his copurchaser
to obtain the property for less than the respondents were will-
ing to accept. ( Udell v. Atherton, 7 H. & N. 172.)
Bartlett, J. The plaintiff seeks to recover in this action
damages by reason of alleged false representations made by
the defendants upon the sale of a certain business which had
been conducted by them under the firm name of Thompson,
Culbert & Company. This sale took place in October, 1889,
and in order to deal with the questions of law presented a
history of the facts is essential.
The defendant's firm of Thompson, Culbert & Com-
pany were in October, 1889, and for years prior thereto,
importers of wines and liquors at 39 Broadway, in the city of
New York. The defendants John and Kobert Thompson
were brothers. John Thompson was seventy years of age at
the time of this transaction and Robert was a very much
younger man. Robert Thompson and the defendant Norris
had practically nothing to do with this business except as con-
tributors of capital, the management being left to John
Thompson and the defendant Culbert. John Thompson con-
tributed thirteen thousand dollars as capital and Robert
Thompson and Norris contributed six thousand five hundred
dollars each. Culbert, who was not financially responsible,
furnished no capital and received one-fifth of the profits for
services rendered.
The defendants Robert Thompson and Norris were at this
time, respectively, president and vice-president of a corpora-
tion known as the Thompson & Norris Company, manufac-
turers of corrugated paper for packing purposes, and had for
many years been doing business in the city of Brooklyn.
In the month of August, 1889, the members of the firm of
Thompson, Culbert & Company became aware of the fact that
through the dishonesty of clerks a defalcation had occurred
1903.J Taylor v. Thompson. . 171
N. Y. Rep.] Opinion of the Court, per Bartlett, J.
amounting to thirty thousand dollars, being somewhat in excess
of the paid-up capital of the business. After considerable
discussion the Thompsons and Norris concluded that it would
be better to wind up the business, as John Thompson was
advanced in years and greatly disturbed by the defalcation,
and Robert Thompson and Norris had no disposition to carry
on a business outside of their corporate interests, to which
reference has already been made.
When Culbert was advised of the disposition on the part of
his partners to wind up the concern, he stated that he would
like to retain the business. The result was that Culbert's
partners stated to him, in substance, that if he could raise the
money so as to return to them their capital and relieve them
from all obligations to the creditors of the firm, they would
sell the business. Culbert thereupon had an interview with
his friend, Robert E. Bonner, who introduced him to the
plaintiff Taylor. Bonner was a man of means and agreed to
advance to Taylor the necessary amount to purchase this busi-
ness if Taylor was satisfied to enter into business relations with
Culbert. After certain negotiations between Taylor and Cul-
bert a firm was formed, under the style of Culbert & Taylor,
having for its object the taking over of said business. The assets
of the business were ultimately turned over to Culbert & Tay-
lor, the defendants Thompson and Korris received their con-
tributions of capital and were released from their obligations
to the creditors of the firm of Thompson, Culbert & Company.
Taylor, in the following June, 1890, claims to have ascer-
tained that Culbert made fraudulent representations as to the
assets and liabilities of Thompson, Culbert & Company, but
notwithstanding this fact continued in firm relations with him
for two years thereafter. Taylor testified in this connection
as follows : u When I discovered the evidence of this fraud
on the thirtieth day of June, 1890, Mr. Culbert was my part-
ner and continued to be such for two years after that time.
I called his attention to the fact that he had perpetrated a
fraud upon me. I did that, I think, about September of that
year and continued in partnership with him after that for
172 Taylok v. Thompson. [Oct.,
Opinion of the Court, per Bartlett. J. [Vol. 170.
nearly two years. He was a full partner and entitled to half
interest. He did not draw out a full one-half. I permitted
him to be there with certain rights. I had him pretty well
covered. I am still carrying on the business. It has been a
profitable business since I took possession of it ; it was not at
the time I took it."
At the expiration of these two years Culbert is said to have
assigned his interest in the firm to Taylor, and on the 16th
day of January, 1893, this action was commenced by Taylor,
individually, naming as defendants the partners in the former
firm of Thompson, Culbert & Company, including Culbert.
The defendants John Thompson and Culbert were not served
and have not appeared. It is also to be observed that Culbert
was not produced as a witness on the trial of this action.
This action has been twice tried. The plaintiff recovered a
judgment on the first trial, which was reversed by reason of
errors in the charge of the trial judge.
It should also be observed that notwithstanding the fact
that Culbert is said to have assigned to Taylor his interest in
the firm of Culbert & Taylor, that assignment was not offered
in evidence on this second trial.
The theory of the plaintiff's action apparently is, that Cul-
bert, as a member of the firm of Thompson, Culbert & Com-
pany, fully representing them in law as their agent, made cer-
tain false representations to him in negotiating the sale of this
business as to the value of the assets and the amount of the lia-
bilities, upon which he relied, to his damage of thirty-three
thousand dollars and upwards.
The main contention of the plaintiff and appellant is, that
he was entitled to go to the jury on the question of what
relation existed between him and Culbert during these nego-
tiations which resulted in the sale of the business.
We are of the opinion that there are certain undisputed facts
upon which the directed verdict can staud. It is true that
there is a conflict of evidence as to what occurred when
these parties met at the office of counsel to close matters.
Robert Thompson and Norris testified that they told Taylor
1903.] Taylor v. Thompson. 173
N. Y. Rep. J Opinion of the Court, per Bartlett. J.
at that time and in the presence of counsel that they had
nothing whatever to do with the management of this business
and that they did not know what the assets of the business
consisted of.
John Thompson testified on the first trial, and his testimony
was read on the second trial, he having died in the interval,
referring to his interview at office of counsel, as follows : " My
brother got up and said, * Mr. Taylor, we know nothing about
the assets, whether they were worth Jen thousand dollars or
one hundred thousand dollars. We sold out to Mr. Culbert
on their appraisal, and we know nothing whatever about
whether they are worth anything or a good deal.' "
These statements were corroborated in the main by counsel.
The plaintiff swore witnesses who denied that these statements
were made.
If the case rested on this portion of the evidence it certainly
should have been submitted to the jury. It, however, stands
uncontradicted, as between Culbert and his partners, that he
was to raise money and take over the business if he wished to
continue it in connection with any third party. Culbert had
been the partner of plaintiff for years and a member of a firm
formed for the purpose of taking over this business, conced-
edly, and the fact that he was not sworn at the trial, nor
served in this action, permits the presumption that he could
not have aided the plaintiff's case if placed upon the witness
stand.
The defendants' theory of the action rests upon this uncon-
tradicted evidence that the Thompsons and Norris wished to
abandon the business upon being paid the amount of their
capital, and be relieved from liabilities for the debts of the
firm of Thompson, Culbert & Company ; that Culbert was
acting wholly in his own interest, wishing to preserve the busi-
ness for himself and some third person whom he might induce
to advance the necessary capital and become associated with
him in the conduct of the business.
As already pointed out, this transaction took the form, so
far as the papers are concerned, of a transfer from the firm of
174 Taylor v. Thompson. [Oct.,
Opinion of the Court, per Bartlett, J. [Vol. 176.
Thompson, Culbert & Company to the firm of Cnlbert &
Taylor. Taylor, when on the stand, testified that lie took a
hill of sale at the time he purchased. This is error, as there
is attached to his amended complaint a bill of sale from the
firm of Thompson, Culbert & Company to the firm of Culbert
& Taylor.
It also appears by the dissolution agreement, whereby the
firm of Thompson, Culbert & Company was dissolved, that
its property, assets and good will were to be sold to Robert
B. Culbert and William A. Taylor. The real transaction,
without regard to the forms which the parties saw fit for con-
venience to adopt, is made very clear by evidence that is not
disputed.
As above stated, the testimony of John Thompson, taken at
the first trial, was read on the second trial, he having died
meanwhile. The beginning of the transaction now before the
court is therein disclosed with great clearness. He refers to
the time when he first learned of the defalcation, and in that
connection he testified : u I sent immediately for my brother
and Mr. Norris, and they came and I told them what had hap-
pened. I think I went over to Brooklyn to see them after-
wards, and we decided then and there to sell out our claim
upon the partnership, and make some disposition of the busi-
ness, go into liquidation and pay off the debts, and either go on
with the business under some other name or retire entirely. I
came back and told Mr. Culbert of it. * Well,' he said, * if that
is so, I would like to retain the business.' Mr. Culbert said,
i Mr. Bonner, who was a friend of mine, then told me he
would assist me at any time that I wanted to go into business.
And if we were willing to sell out to him that he would see
Mr. Bonner and see if he would furnish the money to buy out
the stock.' I told him he could see him ; that I was willing
to sell out to him, and all I wanted was my money that I put
into the firm. He asked if I would see the other two. I told
him I would, and went and saw them, and in talking it over
we all agreed to sell out, provided we got back the capital we
put in the firm, and interest from the last of February to
1903.] Taylor v. Thompson. 175
N. Y. Rep.] Opinion of the Court, per Bartlktt, J.
three o'clock on the day we would give them up possession. I
came back and told Mr. Culbert and he said he would go and
see Mr. Bonner. He went off and came back and said that
Mr. Bonner told him to look the matter over, and if it was
all right he would furnish him the money to buy it up.
1 Now,' he said, * if I buy this, you will stay with me for a
short time, not to exceed three months, and attend to the office
while I attend to the outside business, until I get some man to
take care of the office,' which I agreed to do, and told him I
would, provided he paid me my money and the interest, which
he promised to do, if, on examination, he found the business
or capital was not much depleted. * * * The terms men-
tioned to Culbert upon which we were to sell out, were that
we were to be paid our capital and interest} and all debts of
the firm, foreign and domestic, were to be provided for.
This conversation was in August. * * * I first heard
mention of Mr. Taylor about the last of September or the
first of October. Mr. Culbert first mentioned him to me.
He told me that Mr. Bonner had found a man to take
charge of the office and have him take an interest in the
business — a man by the name of Taylor, whom he did
not know, he said, and was kind of sorry for it, because
he did not know Mr. Taylor, and he might make it very
unpleasant for him in the transaction of business, but he was
going to be the head of the firm himself, and things had to go
as he said himself ; that Bonner was furnishing the money to
buy the concern out."
These statements of John Thompson are corroborated by
Bonner, who was sworn by the plaintiff. This witness alludes
to the first interview he had with Culbert in this matter. He
said : " We were lunching together, as we did once in a while,
and he spoke of the defalcation, * * * and said that he
was afraid, as the result of the whole thing, that lie was going
to be forced out of the business unless he could get capital to
go in, and if he could get capital to go in he claimed that he
had a very good business proposition, which would pay any-
body and would take about sixty thousand dollars. That, I
176 Tayloe v. Thompson. [Oct,,
Opinion of the Court, per Bartlett, J. [Vol. 176.
think, was about the substance of the first conversation we
had."
When cross-examined as to this interview, Mr. Bonner 6aid :
" The idea was that he was afraid it might be dissolved and
reorganized and he left out. He did not want to be left out.
He wanted to stay in. Q. And he wanted you to assist him,
so that he could stay in, did he not ? A. Well, he didn't put
that as broadly as that, at first. Q. How did he put it ? A.
Well, he was just telling me his whole history, you know —
his history like one friend talks to another, and he led up to
it by degrees ; it resulted, practically — Q. He was telling
you the trouble he was in ? A. It resulted in that, without
absolutely saying here, ' won't you lend me this money right
straight out.' "
It is clear from the uncontradicted evidence of these two
witnesses that Culbert was primarily acting in his own inter-
est, and that it was a matter of indifference to the other part-
ners in the firm of Thompson, Culbert & Company whether
the transfer was made to him or to some person who could raise
the money and enter into business relations with him, or to a
firm to be formed.
If we adopt the plaintiff's theory of the action, that Culbert
was throughout acting as the agent of the firm of Thompson,
Culbert & Company, and had made false representations
which rendered himself and partners liable to the persons
purchasing the business, relying upon those representations,
then it is clear that this action should have been brought in
the firm name of Culbert & Taylor, as they were on the
face of the proceeding the purchasers of the business and
received a written bill of sale, to which reference has already
been made.
It is difficult to understand from the standpoint of plain-
tiff's theory how he can maintain this action as an individual.
Assuming, therefore, that this action should have been brought
by the firm of Culbert & Taylor, we are met by insuperable
legal difficulties. This is an action at law to recover damages
for deceit, and it is well settled that no action can be main-
1903.] Taylor v. Thompson. 177
N. Y. Rep.] Opinion of the Court, per Bartlett, J.
tained at law between the members of two firms having one
member common to both. {Engliss v. Fumiss, 2 Abb. Pr.
333; Bosanquet v. Wray, 6 Taunt. 597; Jones v.* Yates, 9
Barn. & Cress. 532, 538.)
In Engliss v. Fumiss [supra) it was held that the action
would not lie, although the common partner assigned his
interest in the claim to his copartners.
In the case at bar it is claimed that Culbert had assigned to
Taylor any rights he had in the premises, but as above pointed
out, the assignment was not offered in evidence, and if it had
been it would not have added any support to this form of
action.
If either the firm of Culbert & Taylor, or of Taylor
individually, had any cause of action against one or more of
the defendants, a judgment adjusting the rights of the various
parties could only be rendered by a court of equity. (Boson-
quet v. Wray, supra, at p. 605.)
It, therefore, follows, assuming the plaintiff's theory of the
action to be correct, that the trial judge was justified in direct-
ing a verdict for the defendants for the following reasons :
That plaintiff failed to show a state of facts supporting any
action by him individually against the defendants; that the
firm of Culbert and Taylor, if parties plaintiff, could not
maintain this action at law against the defendant firm, Culbert
being a common partner of both firms.
If, on the other hand, we assume the defendants' theory to
be correct, that the undisputed facts warrant the conclusion
that Thompson, Culbert & Company sold out to Culbert,
agreeing* to transfer the property to him, or to such person or
firm as he might form, then in negotiating with plaintiff Cul-
bert was primarily and principally acting for himself and in
his own interest. This being so, and in view of the long
standing business relations between the plaintiff and Culbert
after the alleged fraudulent representations were discovered,
according to the testimony of the plaintiff, Culbert cannot bo
regarded as having acted as the agent of the defendant firm,
but rather as carrying on an independent negotiation, for his
12
178 Russell v. Prudential Ins. Co. [Oct.,
Statement of case. [Vol. 176.
own benefit, between himself and the plaintiff. The trial
judge was, therefore, justified in directing a verdict for the
defendants on this view of the case.
We are of the opinion that in any aspect of the case the
judgment of the Trial Term and the Appellate Division should
be affirmed, with costs.
O'Brien, Vann, Cullen and "Werner, J J., concur;
Parker, Ch. J., concurs in result ; Martin, J., absent.
Judgment affirmed.
Amelia Russell, Respondent, v. The Prudential Insurance
Company of America, Appellaut.
1. Insurance, Life — Restriction of Power of Agents. A life
insurance company may enter into a contract with an applicant for insur-
ance which can so fix the precise conditions under which the policy shall
issue that agents, general or local, in the absence of express authority,
cannot waive them.
2. When Provision in Application for Insurance That Policy
Shall Not Take Effect until First Premium Be Paid Thereon
in Full Charges Applicant With Notice That Agents Without
Express Authority Have No Power to Waive It. Where a written
application for a policy of life insurance, duly signed by the applicant, pro-
vides that the application is to become a part of the contract of insurance
applied for; that the policy to be issued thereunder shall be accepted sub-
ject to the conditions and agreements therein contained; that the policy
"shall not take effect until the same shall be issued and delivered by the
said company and the first premium paid thereon in full," which pro-
vision is carried into the policy with due reference to the same, the
applicant must be presumed, in the absence of fraud, to have read or had
read to him the application before signing it, and he is thereby advised
that the policy cannot issue or take effect until the first premium is paid
tbereon in full; the legal effect is that he covenants directly with the
company, not through its agent, that the policy is not to be binding until
the first premium is paid in full, and he is chargeable with notice that
the agent, whether general or local, cannot, without express authority,
waive such payment and deliver a valid policy.
3. Same. Where it appears in an action brought upon such policy by
the beneficiary named therein that, at the time the policy was delivered
to the insured, a general agent of the company extended the time of pay-
ment of the premium for thirty days from such delivery, stating that the
1903.] Russell v. Prudential Ins. Co. 179
N. T. Rep.] Statement of case.
insurance would go into immediate effect, and the insured died four days
thereafter, and before the premium was paid, the beneficiary cannot recover
without proof of the agent's express authority to waive the payment of
the first premium.
RwaeU v. Prudential Ins. Co., 73 App. Div. 617, reversed.
(Argued June 11, 1908; decided October 6, 1908.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
May 26, 1902, affirming a judgment in favor of plaintiff
entered upon a verdict and an order denying a motion for a
new trial.
The nature of the action and the facts, so far as material,
are stated in the opinion.
D. Raymond CM for appellant. The court erred in deny-
ing defendant's motion for a nonsuit. (1 May on Ins. § 144;
Allen v. G. A. Ins. Co., 123 N. Y. 6; Quintan v. P. W.
Ins. Co., 133 N. Y. 356 ; Walsh v. II. Ins. Co., 73 N. Y. 11 ;
Moore v. N. Y. B. F. Ins. Co., 130 K Y. 543 ; Forward v.
C. Ins. Co., 142 N. Y. 382 ; Conway v. P. L. db M. Ins. Co.,
140 N. Y. 83 ; Wilkis v. S. Ins. Co., 43 Minn. 177 ; Dunham
v. Morse, 158 Mass. 132 ; Marvin v. U. Ins. Co., 85 N. Y.
278 ; Bishop v. A. Ins. Co., 130 N. Y. 496.) The court
erred in holding with the plaintiff as a matter of law upon
the question of Mr. Tennant's authority, of waiver, and.
estoppel, and in refusing to submit these questions to the jury.
{Gibson El. Co. v. L. cfe I. & G. Ins. Co., 159 N. Y. 426;
Stewart v. U. M. L. Ins. Co., 155 N. Y. 257; Williams v.
P. F. Ins. Co., 57 N. Y. 274 ; Cornish v. F. B. F. Ins. Co.,
74 N. Y. 295.) The court erred in its refusals to charge.
(Clark v. Aldrich, 4 App. Div. 527.)
Frederick A. Kuntzsch for respondent. The general agent
of the defendant had authority to waive the condition of the
policy requiring payment of the initial premium as a condi-
tion precedent to its taking effect. {Marshall v. C. T.M. A.
Asm., 170 N. Y. 434 ; Genung v. M. Ins. Co., 60 App. Div.
180 Russell v. Prudential Ins. Co. [Oct.,
Opinion of the Court, per Bartlett, J. [Vol. 176.
424 ; Ames v. M. L. Ins. Co., 40 App. Div. 465 ; Sheldon v.
A. F <& M. Lis. Co., 26 N. Y. 460 ; Boehen v. W. C. Ins.
Co., 35 N. Y. 131 ; Buggies v. A. C. Ins. Co., 114 N. Y.
415 ; McNeilly v. C. L. Ins. Co., 66 N. Y. 23 ; Marcus v.
St. L. M. L. Ins. Co., 68 N. Y. 625 ; Palmer v. P. M. L.
Ins. Co., 84 N. Y. 63 ; 2 May on Ins. [4th ed.] §360b; Wood
v. P. /;&*. Co., 32 N. Y. 618.) Assuming that the general
agent did not have express authority to waive the condition
requiring payment of the initial premium, the defend-
ant is, nevertheless, bound by his act. {Babcock v. Baker,
37 App. Div. 558 ; Stewart v. TI. M. L. Ins. Co., 155
N". Y. 257; Peehner v. P. Ins. Co., 65 N. Y. 196;
Bodine v. F. F. Lis. Co., 51 N. Y. 117; Cross v. S. T. &
L. Ins. Co., 58 App. Div. 602 ; Flaherty v. C. Ins. Co., 20
App. Div. 275 ; Bliss v. A. Ins. Co.> 18 App. Div. 481 ;
Miller v. L. Ins. Co., 12 Wall. 285.) The submission to the
jury of the sole question, whether or not the defendant's
agent, upon delivery of the policy gave credit for the first
premium, was not error. {Skinner v. Norman, 165 N. Y.
565 ; Genung v. M. Ins. Co., 60 App. Div. 424; W. T. M.
Co. v. II. K Ins. Co., 66 N. Y. 613 ; Goodwin v. M. M.L.
Ins. Co., 73 K Y. 480 ; Bobbins v. S. F. Ins. Co., 149 N. Y.
477 ; Boehen v. W. C. Ins. Co., 35 K Y. 134 ; Forward v. C.
Lis. Co., 142 N. Y. 382.) The exceptions to the rulings of the
trial court are not well taken. {Skinner v. Norman, 165 N.
Y. 565 ; Peehner v. P. L. Ins. Co., 65 N. Y. 195.)
Bartlett, J. The defendant is an insurance corporation
organized in New Jersey, conducting two classes of insurance,
one known as the "industrial" and the other "ordinary"
insurance. Under the former plan small policies are issued
upon which weekly payments are paid; under the latter
larger policies are issued, the premiums being payable annually,
semi-aunttally or quarterly.
The plaintiff sued to recover on a policy issued on the life
of her deceased husband under the " ordinary " plan. The
defendant was represented in this state by one Charles EL
1903.] Kussell v. Prudential Ins. Co. 181
N. Y. Rep.] Opinion of the Court, per Bartlett, J.
Tennant as general agent at Syracuse. Tennant's district
consisted of the counties of Onondaga, Oswego and Cortland.
It appears that at the time negotiations were opened for
the policy sued on, the insured held a policy for a like amount
in the defendant company, which was duly paid.
The complaint alleges that on the 30th day of December,
1899, the defendant issued the policy in suit ; that on the 6th
day of January, 1900, the defendant waived the payment of
the first premium and extended same for a period of thirty
days; that on the 10th day of January, four days thereafter,
the insured was killed by an explosion.
The answer is a general denial, and also contained an
affirmative defense to the effect that defendant had not
insured the plaintiff's life, and that the policy alleged in the
complaint never had an inception, the plaintiff not having
paid the annual premium thereon,, or compiled with the
preliminaries necessary to give it validity. The issues were
tried at the Onondaga Trial Term and the jury rendered a
verdict in favor of the plaintiff. The Appellate Division
affirmed the judgment entered upon the verdict. No prevail-
ing opinion was handed down, but Justice Hiscock wrote a
dissenting opinion, Justice "Williams concurring.
The facts are as follows : On the 26th day of December,
1899, the plaintiff made a written application for the policy
in suit. The material portions of that application read : " I
hereby declare and warrant that all the statements and answers
to the above questions, as well as those made or to be made
to the company's medical examiner, are or shall be complete
and true, and that they, together with this declaration, shall
form the basis and become a part of the contract of insurance
hereby applied for. And it is further agreed that the policy
herein applied for shall be accepted subject to the conditions
and agreements therein contained, and said policy shall not
take effect until the same shall be issued and delivered by the
said company and the first premium paid thereon in full,"
etc. This application was signed by the applicant and duly
witnessed.
182 Russell v. Prudential Ins. Co. [Oct.,
Opinion of the Court, per Bartlett, J. [Vol. 176.
Upon receipt of the application the policy was sent to the
general agent at Syracuse. On January 6th, 1900, the general
agent, in company with a sub-agent, went to the house of the
deceased and had an interview with him.
Plaintiff swears in substance that after her husband had
stated his inability to pay the first premium at that time, the
general agent informed him that he might have thirty days
additional time in which to pay the first premium and that
the insurance would go into immediate effect. The general
agent and the sub-agent denied this conversation in toto and
say that deceased was distinctly informed that the policy, as
stated therein, would not go into effect until the first premium
was paid in full. The receipt for the first premium was there-
upon signed by the general agent and delivered to the insured
and by him handed to the sub-agent, who was to hold it until
the payment was actually made. This transaction as to the
receipt is not disputed.
The policy contained the following, among other, provisions ;
it is headed, " Eegarding agents." " No agent has power in
behalf of the company to make or modify this or any con-
tract of insurance, to extend time for paying the premium, to
waive any forfeiture, or to bind the company by making any
terms, or making or receiving any representation or informa-
tion. These powers can be exercised only by the President,
one of the Vice-presidents or the Secretary, and will not be
delegated. Modifications, etc. No provision of this policy can
be modified or waived in any case except by indorsement
hereon signed by the President, one of the Vice-presidents or
the Secretary."
The general agent was appointed to his position under a
written contract, which is in evidence, and contains this pro-
vision, among others : " 4th. It is understood and agreed that
said general agent has no authority on behalf of the Pru-
dential Insurance Company of America, to make, alter or
destroy any contract, to waive forfeitures, nor to receive any
moneys due or to become due to said company, except on
policies or renewal receipts signed by the President, Secretary
1903.] Russell v. Prudential Ins. Co. 183
N. Y. Rep.] Opinion of the Court, per Bartlett, J.
or Manager of the Ordinary Branch and sent to him for
collection."
These facts constituted, substantially, the plaintiff's case,
and the defendant thereupon moved for a nonsuit, on the
ground that the plaintiff had failed to make out a cause of
action. The court denied the motion. The defendant swore
the general agent and sub-agent as witnesses, and each posi-
tively denied that the conversation testified to by plaintiff
ever occurred between the general agent and the insured.
At the close of the evidence the defendant again moved
for a nonsuit and for a directed verdict, specifying, among
others, the ground that upon the plaintiff's own evidence, and
upon the uncontradicted evidence in the case, the general
agent had no authority to make or modify the contract of
insurance as testified by plaintiff.
The learned trial judge, in denying this motion, said : " I
deny the motion and give you an exception. The one ques-
tion I am going to submit to the jury is this : whether on
January 6th, 1900, Mr. Tennant, at the time he delivered the
policy to Mr. Russell, agreed that the time for payment of
the premium should be extended, as is claimed by plaintiff,
and that the policy could, in the meantime, remain in force.
That is the only question I am going to submit to the jury.
If they find in favor of the plaintiff upon that state of facts
the verdict will be for plaintiff. If they find for defendant
upon that proposition the verdict will be for the defendant."
To this limitatiou the defendant excepted.
The trial judge, in one of his ruling9, said : " I hold as
matter of law that if Mr. Tennant did what plaintiff claims
he did on the 6th of January, then there can be a recovery
in this case." To this ruling the defendant excepted.
The defendant contended that if there was any evidence
that Tennant had apparent authority to put the policy in
force and waive its express conditions, and any evidence of
estoppel, the questions were for the jury, but the court
adhered to its view that it was a question of law upon the
contract of insurance.
184 Russell v. Prudential Ins. Co. [Oct.,
Opinion of the Court, per Bartlett, J. [Vol, 176.
The important question presented in this case, therefore,
is, can an insurance company so draw the various papers con-
stituting its contract of insurance as to prevent general and
local agents from exercising powers to the detriment of the
company, when the substantial provisions of that contract
are brought home to the insured prior to the alleged delivery
of the policy.
This case may be regarded as a test one on the point, as it
is apparent that the contract of insurance now before the
court is as 6trong in favor of the company as language can
make it.
In considering the law of this case, we are met at the out-
set by the contention of the respondent that the case of
Stewart v. Union Mutual Life Ins. Co. (155 N. Y. 257) is
controlling. In that case it was held that the right of insur-
ance companies to restrict their liabilities for acts of their
agents, by inserting clauses in the application and policy
restricting the powers of agents, must be recognized, unless
by so doing their contracts would become tainted with fraud,
and in such case it will be presumed that the waiver was
intended rather than fraud. In that case it was distinctly held
that to have decided it in favor of the company would have
worked a fraud upon the insured under the undisputed facts.
The defendant in the case cited was a Maine corporation.
It is true that the application and policy were quite similar
to the case at bar. The application provided that " it will
constitute no contract of insurance until a policy shall have
first been issued and delivered by the company and the first
premium thereon paid during the life of the party proposed
for insurance in the same condition of health as described in
the application."
The policy provided that " All premiums are due at the
office of the company in the City of Portland, Maine, at the
date named in the policy, but at the pleasure of the company
suitable persons may be authorized to receive such payments
at other places, but only on the production of the company's
receipt thereof, signed by the President, Secretary or Assist-
1903.] Ktrs8ELL v. Prudential Ins. Co. 185
N. Y. Rep.] Opinion of the Court, per Bartlbtt, J.
ant Secretary. Any payments made to any person except in
exchange for such receipt will not be recognized by the com-
pany, or be deemed by either party as a valid payment. No
agent, nor any other person, except the President, or Secre-
tary, in writing has power to alter or change in any way the
terms of this contract, or to waive forfeiture."
One Crane was the manager of the defendant's business in
the state of New York. The precise powers of the manager
do not appear, and we are, therefore, not advised whether he
was clothed with more ample authority than the general
agent in the case at bar. The policy was issued on the 19th
day of April, 1890, on the life of the plaintiffs husband.
The manager delivered the policy to the insured, taking a
note for $123.10, being the amount of the first year's pre-
mium, which note became due and payable on May 31st, 1890.
On August 9th, 1890, a check for the amount of this note,
which had been given by the insured to the manager in
response to a letter from the cashier of the company, dated
four or five days before the note fell due, calling the insured's
attention to the due date, was deposited for collection, but
returned by the bank marked, " not good." The insured was
notified of the non-payment of this check August 9th; on
August 12th the insured notified the manager he was ill, but
would arrange for the payment of the check the last of that
week. The insured died two days later.
"We thus have the manager for the state of New York
taking a note for the first year's premium, which was not paid
at maturity, and accepting a check for the amount of the
note, which was not paid on presentation two or three months
after it was given.
It is thus rendered clear by inevitable inference that the
home office in Maine must have been advised of this depart-
ure from the strict rule in regard to the payment of premium
at the time the policy was issued and had ratified the action
of its manager. It cannot be fairly assumed that a policy
taking effect the latter part of April had not been reported to
the home office by the following August.
186 Sussell v. Prudential Ins. Co. [Oct.,
Opinion of the Court, per Bartlktt, J. [Vol. 176.
This view was evidently entertained by the court, as appears
in Judge Haight's opinion, at the bottom of page 266, as fol-
lows : " There is still another theory upon which, we think,
the plaintiff established a cause of action, at least sufficient to
make it a question of fact for the jury. It is apparent that
Crane represented to Stewart that he had an insurance and
that Stewart supposed himself to be insured from the letters,
expressions and acts to which we have referred. It is also
apparent that the contract was that Stewart was to have credit.
This may be clearly inferred from Crane's first letter. The
rule is, that the knowledge of the agent is the knowledge of
the principal, and it will be presumed that the company knew
the terms of the contract entered into by its agent, and either
waived the provisions of the policy for immediate payment of
the premium, or held itself estopped from setting it up, for
to hold otherwise would impute to it a fraudulent intent to
deliver and receive pay for an invalid instrument."
In the case at bar we have no such situation. The policy
was delivered on the 6th day of January, and the insured was
accidentally killed four days thereafter, so that there can be no
presumption of ratification of the act of the general agent in
delivering the policy without collecting the premium as
required by the rules of the company. It follows that the
case cited is distinguishable from the one at bar and offers
no obstacle to our disposing of the latter on its peculiar
facts.
In the case before us we have a contract that distinguishes
it from a large number of cases which hold that the provision
of the policy to the effect that only certain officers of the com-
pany can waive payment of premiums when due and that
agents cannot do so, does not apply to the initial premium.
This distinguishing feature is found in the fact that the appli-
cation, which is made a part of the policy, contains the express
condition that the policy shall not take effect until the same
shall have been issued and delivered by the company and
the first premium paid thereon in full.
In this connection it is to be observed that not only is the
1903.] Russell v. Prudential Ins. Co. 187
N. Y. Rep.] Opinion of the Court, per Bartlett. J.
application made a part of the policy by its terms, but the
policy opens with this provision : " In consideration of the
application for this policy, which is hereby made part of this
contract, and of the quarterly annual premium of seven and
02-100 dollars, which it is agreed shall be paid to the com-
pany in exchange for its receipt on the delivery of this pol-
icy," etc.
The above quotation from the policy gives added signifi-
cance to the manner in which the receipt was treated at the
interview between the agents and the insured, to which refer-
ence has already been made. The policy states that it is to
be given in exchange for the receipt, and it rests upon the
undisputed evidence that the receipt was left in the custody
of the sub-agent, not to be surrendered until the first premium
was paid.
In many of the cases cited, where insurance companies
were held liable, the agent having waived the payment of the
first premium contrary to the provisions of the policy and
without authority from tho company, the decision was based
upon the fact that the policy had never been delivered to the
insured, and, consequently, he could not be charged with
notice of its contents at the time of the agent's waiver of
payment.
It was argued that to hold otherwise would practically per-
mit the company, through its agent, to work a fraud upon the
insured by leading him to believe that he had secured insur-
ance when such was not the fact.
We have been cited to a multitude of cases by the respond-
ent which it is quite impossible to review in detail within the
limits of an ordinary opinion. Many of these are within
the class to which reference has already been made, in regard
to waiving the payment of the initial premium, and others
deal with waiver in various forms, such as resting on the gen-
eral course of business with the insured ; knowledge of the
agent before issuing the policy that property was subject to
mortgage or other lien ; that the title was in a third person ;
that there was other and undisclosed insurance, or various
] 88 Russell v. Prudential Ins. Co. [Oct.,
Opinion of the Court, per Bartlett, J. [Vol. 176.
conditions which would render the policy void, by its terms, if
the company were not chargeable with the knowledge of its
agent, by reason of information imparted to him by the
insured during the preliminary negotiations.
In the case at bar there is no evidence of a course of busi-
ness between the company and the insured, nor was it shown
that the general agent had power to waive payment of the
first premium. On the contrary, the plaintiff put in evidence
the contract between the company and its general agent, which
showed, affirmatively, that he possessed no such power.
We thus come to the important and controlling question in
this case, whether the insured is to be charged with notice of
the contents of the written application, which he executed,
making the same a part of the contract of insurance.
The legal presumption is, in the absence of fraud, that the
insured read or had read to him the application before signing
it. This being so, he was advised that the policy could not
issue or take effect until the first premium was paid thereon in
full.
The legal effect is that the insured covenanted with the
company directly, and not through its agent, that the policy
was not to be binding upon the company until the first pre-
mium was paid in full.
Is this contract to be enforced as clearly written, or is it to
be ignored for the reason that men enter into contracts with-
out reading them and assume that a vague and un proven cus-
tom exists permitting a local agent to give life and validity to
the policy without reference to the terms of the contract of
insurance ?
The question may be put in another form. Can an insur-
ance company enter into a contract with a person applying for
insurance, which can so fix the precise conditions under which
the policy shall issue, that the agent, in the absence of express
authority, cannot abrogate it ?
It would seem that the mere statement of the foregoing
questions would compel an answer in favor of the company
without argument.
1903.] Russell v. Prudential Ins. Co. 189
N..Y. Rep.] Dissenting opinion, per Haight, J.
An insurance company is entitled to have its contract
enforced by the courts as written, unless, as has been stated
in many cases, to strictly construe it as against the insured
would work a fraud upon him. As already pointed out, this
might be the case in reference to the payment of the initial
premium, where the only provisions in regard to the same are
contained in the policy.
It cannot be said in this case, in the teeth of the express
covenant of the insured contained in his application and car-
ried into the policy with due reference to the same, that he
would be subjected to a fraud if the waiver of the agent, made
without authority, is held not to abrogate the contract between
him and the company, of which he is chargeable with full
notice.
"We are of opinion that it was error for the learned trial
judge to instruct the jury that if they found that at the inter-
view between the agents and the insured the general agent
delivered the policy to the insured and agreed with him that
the time of the payment of the first premium should be
extended, and that in the meantime the policy should be in
force, that their verdict should be for the plaintiff.
The order and judgment appealed from should be reversed
and a new trial ordered, with costs to abide the event.
Haight, J. (dissenting). This action was brought to recover
the amount of an insurance policy issued upon the life of
Robert J. Russell, and payable to the plaintiff, his widow.
Charles H. Tennant was the general agent of the defendant,
in charge of its office in Syracuse, and James F. O'Donnell
was the sub-agent and a solicitor of insurance under him.
Russell had made application for insurance through O'Donnell,
and the policy had been issued by the company and sent to its
general agent, Tennant. On the 6th day of January, 1900,
Tennant and O'Donnell called upon Russell at his residence
with the policy of insurance, and asked Russell if he wanted
to pay the premium. He was not ready to pay at that time,
and Tennant then said to him that he could have thirty days
190 Eussell v. Prudential Ins. Co. [Oct.,
Dissenting opinion, per Haight, J. [Vol. 176.
in which to make the payment. He thereupon handed Eus-
sell the policy and gave him a receipt for the first payment,
saying to him that the policy was in force from that time on.
He then suggested that Eussell better let O'Donnell hold the
receipt until he paid the premium. Thereupon Eussell handed
the receipt to O'Donnell and then they went away. On the 10th
day of January thereafter Eussell was killed by the explosion
of an engine in the Eapid Transit power house. Both O'Don-
nell and Tennant deny the statement of the plaintiff, to the
effect that Tennant stated to Eussell at the time he delivered
the policy to him that it should be in force from that date on,
thus raising a question of fact between the parties which was
submitted to the jury, who found a verdict in favor of the
plaintiff, thus settling that question of fact in accordance with
the testimony of the plaintiff.
It is now contended that there can be no recovery upon this
policy, for the reason that the application of insurance con-
tained a clause to the effect that the policy shall not take effect
until the same shall be issued and delivered by the company,
and the first premium paid thereon in full. Upon the back of
the policy there was printed the following : " No agent has
power on behalf of the company to make or modify this or
any contract of insurance, to extend the time for paying a
premium, to waive any forfeiture, or to bind the company by
making any promise, or making or receiving any representa-
tion or information. These powers can be exercised only by
the president, one of the vice-presidents or the secretary, and
will not be delegated."
I had supposed that a general agent of an insurance com-
pany could waive a condition of the policy requiring prepay-
ment of premium, in order to make the policy binding, and
that this proposition was settled so firmly by judicial authority
as to be beyond question. In Sheldon v. Atlantic Fire and
Marine Insurance Company (26 N. Y. 460) it was held that
a general agent of the insurer may waive a condition in the
policy that no insurance should be considered as binding until
actual payment of the premium. Emott, J., in delivering the
1903.] Kussell v. Prudential Ins. Co. 191
N. Y. Rep.] Dissenting opinion, per Haight, J,
opinion of the court, says with reference thereto : " There can
be no dispute that Lewis could waive the actual prepayment
of the premium. He was a general agent of this company,
and whatever may have been his secret instructions the
insurer had a right to rely upon his act. His principals were
bound as well by a waiver on his part of the condition of pre-
payment of the premium as by his contracts of insurance."
In Wood v. Poughkeepsie Mutual Insurance Company (32 N.
T. 619) Porter, J., says : " Boggs was a geneipl agent of the
company. If he had waived the condition of prepayment
the insurers would have been bound by his act, though it was
in violation of their private instructions. The law would
have implied such waiver if the policy had been delivered by
the agent without requiring payment of the premium, and had
been accepted by the plaintiff as a complete and executed con-
tract. The company would have been held to its engage-
ment, and the assured would have been liable for the pre-
mium, notwithstanding the acknowledgment of payment on
the face of the paper." In Boehen v. Williamsburg?*, City
Insurance Company (35 N. T. 131) it was held that
" Although, by the printed terms of the policy, it is stated
that no policy will be considered binding until the premium
is paid, yet the agent may waive such condition and give short
credit. The delivery of a policy without requiring payment
raises a presumption that a short credit is intended." (See,
also, McNeilly v. Continental Life Insurance Co., 66 N. Y.
23 ; Marcus v. St Louis Mutual Life Ins, Co., 68 N. Y. 625 ;
Palmer v. Phmnix Mutual Life Ins. Co., 84 N. Y. 63-70 ;
liuggles v. American Central Ins. Co., 114 N. Y. 415 ; May
on Ins. [4th ed.] vol. 2, sec. 360b ; 19 Am. & Eng. Ency.
of Law [2d ed.] p. 55.)
But it is now claimed that a way has been discovered by
which the settled law upon this subject can be evaded and
annulled, and that is by printing upon the back of the policy
issued a clause which seemingly deprives their agents of any
power to give any information, make any representation, or
to extend the time for the payment of the premium for a
192 Russell v. Prudential Ins. Co. [Oct.,
Dissenting opinion, per Haight, J. [Vol. 176.
single day. It is not pretended that this condition printed
upon the back of the policy was ever called to the attention
of Russell, or that he knew of its existence in his lifetime. It
did not appear upon his application, and nothing was said
with reference to it at the time of the interview in which the
policy was delivered to him by the general agent of the com-
pany. He had no opportunity to read over and post himself
with reference to the printed conditions upon the back of the
policy until the agents had taken their departure. He does
not, however, appear to have read it then, for immediately
after the agents had left he handed it over to his wife, the
plaintiff in this action, who since that time appears to have
had the custody thereof.
It has been intimated that there was some merit in the
defense to this action ; that the jurors should have believed
the agents instead of the plaintiff. But this question has, as
I have already stated, been settled by the jury, and, I have no
doubt, upon ample evidence to sustain the verdict. Indeed,
the testimony of the agents is inconsistent with their conceded
acts. They admit that the general agent, at the time and
place stated by the plaintiff, delivered the policy to Russell
and left it with him, and that he gave him time within which
to make the payment. If the policy was not to be in force in
the meantime, why was it delivered ? Had it been held by
the general agent until the money was paid, no one could have
been deceived with reference to its force and effect. The
very fact of its delivery, under the authorities to which we
have referred, carries the presumption that it was in effect,
and that any provision in the policy to the contrary was
deemed waived. There is but one answer to the action of the
agents, and that is that which the law implies. By the deliv-
ery of the policy to Russell and the inducing of him to accept
it, he thereby became bound to pay the premium from that
day, together with the interest accruing thereon, and the same
could be enforced in a court of law. Whereas, by holding the
policy for one month without delivering it to the insured,
would prevent its earning any premium during that month
1903.] Russell v. Prudential Ins. Co. 193
N. Y. Rep.] Dissenting opinion, per Haigiit, J.
which lawfully could be collected, and the company would
thus be deprived of one-third of its first quarterly premium.
What, then, is the position of this defendant as disclosed by
the record ? It maintains an office in the city of Syracuse,
presided over by a general agent of the company, who has the
supervision of numerous sub-agents, but these agents cannot
give any information, make any representation or promise on
behalf of the company. The only power, apparently, given
to the general agent is to deliver policies and collect premiums
due thereon, but he has no power to extend the time for the
payment or to make delivery of policies until the premiums
are actually paid in cash. And yet this agent, having the
power to deliver policies, delivered this policy without the
payment of the premium, in violation of his instructions,
arranging with the insured to give him thirty days within
which to pay the premium, and to induce him to accept the
policy representing to him that it was then in force. At the
same time this agent knew that the policy contained the pro-
visions alluded to, and that it would not be in force or bind-
ing upon the company, although Russell by his acceptance
had become bound to pay the premium.
To sustain the company's position in this transaction is, to
my mind, the permitting of it to practice a fraud, through its
general agent, upon the insured. The general agent was act-
ing within the scope of his employment in delivering the
policy. Russell, in the absence of knowledge as to the instruc-
tions given the agent in the manual, and of the condition to
which we have referred, had the right to rely and act upon
the statements of the agents, made at the time of the delivery
of the policy ; and he having accepted the same, the company
became bound by the contract. To hold otherwise would
permit the company to deceive its customers by the false and
fraudulent representations of its general agent, and at the
same time avoid responsibility therefor. Parties to contracts,
including insurance companies, cannot be permitted to avail
themselves of their own fraud, in order to escape liability for
13
1 94 People ex rel. Smith v. Weeks. [Oct.,
Statement of case. [Vol. 176.
failure to perform their contracts. (Broom's Legal Maxims,
320.)
The case of Stewart v. Union Mutual Life Insurance
Company (155 N. Y. 257), while distinguishable from the
case under consideration as to the facts, is not, in my judg-
ment, distinguishable as to the questions of law involved.
Under the view taken by me of this case, the exceptions
appearing upon the record present no error calling for a
reversal.
The judgment should be affirmed, with costs.
Parker, Ch. J., Gray, O'Brien and Martin, JJ., concur
with Bartlett, J. ; Haight, J., reads dissenting opinion ;
Vann, J., not voting.
Order and judgment reversed, etc
The People of the State of New York ex rel. Charles
Smith, Appellant, v. II. Luther Weeks, Town Clerk of
the Town of Hempstead, Respondent.
Nassau (County of) — Invalidity of Resolution of Board of
Supervisors of Nassau County, Passed April 9, 1901, Providing
That Biennial* Town Meetings in Said County in the Year 1903
and Thereafter Siiould Be Held on the First Tuesday After the
First Monday in November. A resolution, passed by the board of
supervisors of Nassau county on April 9, 1901, seven days after the elec-
tion of such board for the term of two years from the date of such election,
providing that the biennial town meetings in said county in the year 1903
and thereafter should be held on the first Tuesday after the first Monday
in November, is not supported by the statute (L. 1901, ch. 391), by which
such resolution was claimed to be authorized, since the statute did not
become a law until April 17, 1901, eight days after the passage of the
resolution, and was not intended to be retroactive in its effect, its provisions
being in terms limited to town officers "hereafter elected, " and to cases
where the resolution changing the town meeting is "thereafter" adopted;
neither is such resolution authorized by chapter 374 of the Laws of 1900,
nor by chapter 191 of the Laws of 1901, which are the only statutes, prior to
chapter 891 of the Laws of 1901, authorizing boards of supervisors to
provide for the holding of town meetings at the time of general elections
in the fall, since the resolution in question attempted to extend the term
1903.] People ex rel. Smith v. Weeks. 195
N. Y. Rep.] Statement of case.
of the town officers then in office beyond the period of two years, the
term fixed for such officers by chapter 191 of the Laws of 1901, and hence
the resolution was not only without statutory authority in its support,
but was in violation of it, and, therefore, in violation of section 26 of article
III of the Constitution, which provides that members of boards of super-
visors shall be " elected in such manner and for such period as is or may
be provided by law.'*
People ex rel. Smith v. Weeks, 87 App. Div. 610, affirmed.
(Argued October 5, 1903; decided October 8, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the second judicial department, entered
September 28, 1903, which affirmed an order of Special Term
denying a motion for a peremptory „writ of mandamus.
The nature of the proceeding and the facte, so far as
material, arc stated in the opinion.
Fred. Ingraham and Henry A. Monfort for appellant.
It is competent for the legislature, under the Constitution,
to lengthen the terms of office of town officers in advance of
their election. (Const, of N. Y. art. 10, § 2 ; People ex rel.
Williamson v. MeKinney, 52 N. Y. 374 ; People ex rel.
v. Foley, 148 N. Y. 677.) Although, at the time of the
passage of the resolution assailed, the legislature had not
expressly declared that, in case of such a change in town
meeting day, the present incumbents of the town offices
should hold over and continue in office until their successors
should be elected and had qualified, yet such an intent on its
part is clearly to be inferred from section 10 of the Town
Law as amended in 1898, and as it then stood. {Riggs v.
Palmer y 115 N. Y. 506; People ex rel. v. Cremian, 141 N.
Y. 239 ; People v. U. Ins. Co., 15 Johns. 358.)
Edgar Jackson for respondent. The assumption that the
resolution of the board of supervisors of April 9, 1901, was
effective, and the supervisors and town officers hold over after
the expiration of their terms until successors can be elected, is
not tenable. (Const, of N. Y. art. 3, §§ 18, 26 ; People ex rel. v.
2?w#,46 N. Y. 57.) The assumption that there was no exten-
196 People ex rel. Smith v. Weeks. [Oct.,
Points of counsel. [Vol. 176.
sion of term caused by the supervisors' resolution of April 9,
1901, but that the electors cast their ballots with the contingency
in view that the supervisors might make their own terms and
those of all officers of the towns expire on the 1st day of January,
1904, instead of in April, 1903, i. e., that the statute impliedly
extended or shortened the terms of supervisors and town offi-
cers, making such extension or shortening contingent upon a
change in time of holding town meeting, is not tenable. (L.
1901, ch. 191, § 13 ; Const, of N. Y. art. 10, § 3 ; People ex rel.
v. Palmer, 154 N. Y. 133.) The appellant cannot seriously
contend that two biennial town meetings can be held in the
same year. The statute provides that the electors shall bien-
nially and not twice in one year assemble and hold meetings.
(L. 1900, ch. 374, § 10 ; L. 1901, ch. 191, § 13.) The term
of town officers already duly elected cannot be extended by
the legislature or board of supervisors. (People ex rel. v.
^Foley, 148 N. Y. 677 ; People ex rel. v. Randall, 151 N. Y.
497.) The legislature cannot authorize any county officer to
appoint or extend the term of town officers. (Matter of Bren-
ner, 170 K Y. 50; Rathbone v. Wirth, 6 App. Div. 277;
170 N. Y. 459 ; PeopU ex rel. v. Albertson, 55 N. Y. 50 ;
People ex rel. v. McKinney, 52 N. Y. 374.)
John Vincent for William H. Jones, intervening. The
supervisors elected in 1901 were elected for two years only.
That was the duration of their term as fixed by statute when
that election was held. They were, therefore, entitled to hold
office for the period fixed by the legislature under constitu-
tional authority, or until April, 1903, and no longer. Their
terms could not be abridged or extended, either by their
own act or by an act of the state legislature, without violating
the State Constitution. (L. 1901, ch. 391, § 2 ; People ex rel. v.
Palmer, 154 K Y. 133; Ashton v. City of Rochester, 133
K Y. 187 ; Nichols v. McLean, 101 K Y. 526 ; Gardner v.
Gardner, 87 N. Y. 14; Sage v. Ilarpending, 49 Barb. 166;
Tyler v. Willis, 35 Barb. 213; 13 Abb. Pr. 369; Stevens v.
Stevens, 69 Hun, 332 ; Marcellus v. Countryman, 65 Barb.
1903.] People kx rel. Smith v. Weeks. 197
N. Y. Rep.] Opinion of the Court, per Parker, Ch. J.
201 ; Coburn v. Wood-worth, 31 Barb. 381 ; Matter of Ransier,
26 Misc. Kep. 582.)
Halstead Scvdder for Girdell V. Brower, intervening.
The town meeting held in April was not a nullity either in
whole or in part. {Gray v. Scott, 31 Misc. Rep. 131 ; 57 App.
Div. 630.) The term of an elective officer cannot be extended
during the incumbency of the occupant. {People ex rel. v.
Scott, 31 Misc. Rep. 131 ; 57 App. Div. 630 ; People ex rel.
v. Foley, 148 N. Y. 677 ; People ex rel. v. Randall, 151 N.
Y. 497; People ex rel. v. McKinney, 52 N. Y. 374; People
ex rel. v. Sphiellein, 95 N. Y. 127 ; People ex rel. v. Blair, 21
App. Div. 217, 218 ; 154 N. Y. 734 ; People ex rel. v. Palmar,
154 N. Y. 133.) The resolution adopted by the board of
supervisors of Nassau county in April, 1901, was invalid in so
far as it changed the time of town meeting from April to
November in 1903. {Matter of Seaman, 82 App. Div. 643.)
The April, 1901, resolution must stand on the authority of
the statutes in force at the time it was enacted and in default
of authority being found for its enactment in those statutes it
must fall. (L. 1900, ch. 374 ; L. 1901, ch. 191 ; People ex
rel. v. Palmer, 154 N. Y. 133.)
George Wallace for James M. Seaman, intervening. The
term of elective officers cannot be extended by the legislature
or by the supervisors. {People ex rel. v. Scott, 31 Misc. Rep.
131 ; 57 App. Div. 630 ; People ex rel. v. Foley, 148 N. Y.
677; People ex rel. v. Randall, 151 N. Y. 497; People ex
rel. v. McKinney, 52 N. Y. 374 ; People ex rel. v. Schiellein,
95 N. Y. 127 ; People ex rel. v. Blair, 21 App. Div. 217 ;
154 N. Y. 734 ; People ex rel. v. Palmer, 154 N. Y. 133.)
Parker, Ch. J. The county of Nassau came into existence
January 1, 1899, by ch. 588, Laws 1898, section 5 of which
provided that the first meeting of the board of supervisors
should be held January 3, 1899.
During such session the board passed an act pursuant to
198 People ex rel. Smith v. Weeks. [Oct.,
Opinion of the Court, per Parker, Ch. J. [Vol. 176.
statute (Ch. 481, Laws 1897) fixing the first Tuesday in April
as the time when biennial town meetings should be held.
Such an election was held April 2, 1901, and seven days
later the board of supervisors, the members of which had
been elected at that meeting, passed a resolution providing
that the biennial town meetings in the year 1903 and there-
after should be held on the first Tuesdav after the first Mon-
day in November.
The authority for this resolution was deemed by the board to
be furnished by an amendment (Ch. 191, Laws 1901) to section
10 of the Town Law, which for the first time permitted boards
of supervisors to change the time of holding biennial town
meetings to the fall. But for the passage of this resolution
the biennial election would have been in April, 1903, in pur-
suance of the provision of the resolution first adopted. The
operation of the statute upon the resolution first adopted fixed
the term of office for which the supervisors were elected in
1901 at two years. One of the results accomplished by the
resolution of April 9, 1901, if it was a valid resolution, was to
extend the term of office of those supervisors several months.
In March, 1903, and upon the last day fixed by the statute
for filing certificates for independent nominations for town
officers at a spring election, certificates of nomination for the
offices of supervisor, town clerk and all other town offices
were duly presented to the town clerks of the several towns
of the county of Nassau. The clerks refusing to receive such
certificates, Mr. Justice Gaynob made an order directing said
town clerks to receive such certificates, and to call an election
in the several towns, which was done, an election held and
the successful candidates inducted into office. That order
was affirmed by the Appellate Division of the second depart-
ment, and an appeal taken to this court ; but it was not heard,
because the election having passed, and the candidates having
taken possession of their offices, the question had become
purely an academic one.
August 3, 1903, relator demanded of the clerk of the town
of Hempstead that he make and transmit to the county clerk a
1903.] People ex rel. Smith v. Weeks. 199
N. Y. Rep.] Opinion of the Court, per Pakrer, Ch J.
notice stating each town officer to be voted for at a biennial
town meeting to be held on the first Tuesday after the first
Monday in November, 1903, pursuant to the resolution of the
board of supervisors (supra). The town clerk refused, and
relator applied for an order compelling him to make and file
such a list. The application was denied. After affirmance
by the second Appellate Division an appeal was taken to this
court.
The leading question presented is whether the resolution of
April 9, 1901, was in all things valid, for if it was the order
to compel an election in April, 1903, should not have been
granted, and the proper time for the election will be on the
first Tuesday after the first Monday in November, 1903.
The necessity for a prompt decision in order that the offi-
cials charged with the responsibility of the local election
machinery may be advised of their duty in the premises pre-
vents us from doing much more than presenting briefly the
conclusion at which we have arrived, which is, that there was
no statutory authority for the passage of a resolution like the
one in question, extending the term of office of the officials
affected.
The resolution of April 9, 1901, is not supported by ch.
391, Laws 1901, because (1) such act did not become a law
until April 17, 1901, eight days after the passage of the reso-
lution; and (2) an examination shows the statute was not
intended to be retroactive in its effect, for its provisions are in
terms limited to town officers "hereafter elected," and to
cases where the resolution changing the town meeting is
" thereafter " adopted.
The April 9th resolution, therefore, must find its support,
if at all, in prior statutes. The first act authorizing boards of
supervisors to provide for the holding of town meetings at the
time of general elections in the fall is chapter 374, Laws 1900.
The next and only other statute on the subject, prior to the
resolution in question, is chapter 191, Laws 1901. It was
possible under these acts to have provided for a change of
town elections from spring to fall without offending against
200 People kx kel. Smith v. Weeks. [Oct.,
Opinion of the Court, per Parker, Ch. J. [Vol. 176.
article III, section 26, of the Constitution, which provides
that members of boards of supervisors shall be " elected in
such manner and for such period as is or may be provided
by law." This could have been accomplished by a resolu-
tion in the form suggested by respondent's counsel, to wit :
" The biennial town meetings in the several towns of the
county of Nassau in tho year 1903 sliall be held in April,
pursuant to the resolution passed by this board January 3,
1899. At said town meeting there shall be elected a super-
visor, town clerk, et al. (comprising list of town officers) whose
term of office shall begin at the expiration of the term of their
predecessors, and shall end at midnight on December 31, 1905.
A town meeting to elect the successors to the said town officers
shall be held on the first Tuesday after the first Monday in
November, 1905, and the town officers elected thereat 6hall
take office on January 1, 1906 ; thereafter town meetings
shall be held on tho first Tuesday after the first Monday in
November."
A resolution in that form would have been fully authorized
by the statutes referred to, and would not have offended
against any provision of the Constitution.
The resolution adopted, however, attempted to extend the
time of the town officers then in office beyond the period of two
years authorized by chapter 191, Laws 1901, for which term
they had been elected, and hence was not only without statu-
tory authority in its support, but was in violation of it. The
resolution, therefore, was without authority and void, and the
decision below should be affirmed, without costs.
O'Brien, Bartlett, Martin, Vann, Cullen and Werner,
JJ., concur.
Order affirmed.
1903.] People v. Pierson. 201
X. Y. Rep.] Statement of case.
The People of the State of New York, Appellant, v.
J. Luther Pierson, Respondent.
1. Misdemeanor — Unlawful Omission to Provide Medical
Attendance for a Minor Child — When Indictment Therefor
Sufficient — When Omission to Furnish Medical Attendance Is
Unlawful. An indictment under section 288 of the Penal Code, pro-
viding that "A person who, 1, willfully omits without lawful excuse,
to perform a duty by law imposed upon him to furnish food, clothing,
shelter or medical attendance to a minor * * * or, 4, neglects, refuses
or omits to comply with any provisions of this section, * * * is
guilty of a misdemeanor," which charges that the defendant willfully,
maliciously and unlawfully omitted, without lawful excuse, to perform
a duty imposed upon him by law, to furnish medical attendance for
his minor child, said minor being ill and suffering from catarrhal pneu-
monia, and that he willfully, maliciously and unlawfully neglected
and refused to allow said minor to be attended and provided for by a
regularly licensed and practicing physician, is not bad because it fails to
allege that the case was one in which a regularly licensed and practicing
physician should have been called, and, therefore, fails to charge a criminal
offense, since that is necessarily implied from the language used; if the
medical attendance was not necessary it was not a duty required of the
defendant to furnish it; if it was necessary then it was his duty to furnish
it and his failure to do so is an unlawful omission to perform a duty
imposed, and constitutes a misdemeanor.
2. Test of Necessity for Medical Attendance — Reasonable Dis-
cretion. The necessary medical attendance required for the preserva-
tion of the health of the child does not contemplate the necessity of call*
ing a physician for every trifling complaint with which the child may be
afflicted, which in most instances may be overcome by the ordinary house-
hold nursing by members of the family; a reasonable amount of discretion
is vested in persons upon whom the duty is imposed, and the standard is,
at what time would an ordinarily prudent person, solicitous for the welfare
of the child and anxious to promote its recovery, deem it necessary to call
in the services of a physician.
3. Duty to Furnish Medical Attendance to Minor Child Imposed
by Statute on Guardians, Parents and Those in Loco Parentis.
The phrase "a duty by law imposed" has reference to persons designated
in the statutes and in the common law as parents, guardians or those who
by adoption or otherwise have assumed the relation in loco parentis, and
the character of the duties is specified in the section, and, therefore,
assuming that such persons were not bound at common law to furnish
medical attendance for minors, that duty is expressly provided for and ia
made obligatory upon them by the statute.
i
j
202 l People v. Pierson. [Oct.,
Points of counsel. [Vol. 176.
4. Meaning of "Medical Attendance." The term "medical
attendance " means attendance by a person who under the statute (L.
1880, ch. 518) is a regularly licensed physician, and does not include that
by a layman who, because of his religious belief that prayer for Divine
aid was the proper remedy for sickness, neglects to furnish proper medi-
cal attendance to a minor child who was dangerously ill.
5. Constitutional Gu abanty of Freedom of Worship Not Violated
bt Statutory Requirement. The constitutional guaranty of the full
and free enjoyment of religious profession and worship (Const, art. 1,
§ 8) is not violated by the statute, since practices inconsistent with the
peace and safety of the state are not justifiable, and the peace and safety
of the state involves the protection of the lives and health of its children
as well as obedience to its laws — the omission, therefore to afford this
protection is a public wrong and properly punishable as such.
People v. Pierson, 80 App. Div. 415, reversed.
(Argued June 15, 1908; decided October 13, 1903.)
Appeal from an order of the Appellate Division of
the Supreme Court in the second judicial department,
entered April 25, 1903, which reversed a judgment of the
Westchester County Court entered upon a verdict convict-
ing the defendant of a misdemeanor and granting a new
trial.
The facts, so far as material, are stated in the opinion.
J. Addison Young for appellant. The indictment charges
a crime and the appellate court erred in reversing the judg-
ment of conviction on this ground. (Penal Code, § 288.) The
defendant was under a duty imposed by statute to see to it
that he did not cause or permit the life of his child to be
endangered or its health to be impaired. (Penal Code, § 289 ;
Cowley v. People, 83 N. Y. 464 ; People v. McDonald, 49
Hun, 67 ; Regina v. Downes, 13 Cox Cr. Cas. Ill ; Queen
v. Senior, L. R. [1 Q. B. Div.] 283.)
Robert E. Farley for respondent. The statute under which
the defendent was tried and convicted does not in terms or
effect declare that it is the duty of any one to furnish medical
attendance to a minor. (Penal Code, § 288.) The statute
1903.] Peopus v. Pierson. 203
K. Y. Rep.] Opinion of the Court, per Haight, J.
being penal in its nature must be strictly construed in favor
of the accused. {Y. C. C. Co. v. Murtagh, 50 N. Y. 314;
Sturgis v. Spofford, 45 K". Y. 446, 453 ; People v. Rosenberg,
138 N. Y. 410, 415 ; People v. Nelson, 153 N. Y. 90, 94.)
The defendant having been guilty of no offense at common law,
his liability, if any, must be under the statute, and no statutory
offense can be established by implication. There must be a
clear and positive expression of the legislative intent to make a
given act or omission criminal. {People v. Phyfe, 136 N. Y.
554.) There is no common-law duty to furnish medical attend-
ance to a minor. {Reg. v. Beers, 32 Canada L. J. 416 ; Reg. v.
Coventry, 2 N. T. Eep. 245 ; Reg. v. Wagstafe, 10 Cox C. C.
530 ; 1 Whart. Crim. Law [10th ed.], 352.) Medicine and medi-
cal attendance are not necessities under the law. {Cor si v.
Maretzek, 4 E. D. Smith, 1.) To compel a citizen to furnish
medical attendance for his infant child would be an invasion
of an inalienable right and a violation of the Constitution.
{Powell v. Penn., 127 U. S. 678 ; 1 Tiedemann on Police
Powers, 4, 7-17; Lawton v. Steele, 119 K. Y. 226; L. S.,
etc., R. R. Co. v. Smith, 173 IT. S. 689 ; Allgeyer v. State of
Louisiana, 165 U. S. 578 ; Colon v. Lisk, 153 N. Y. 188 ;
People ex rel. v. Warden, 157 N. Y. 129 ; People ex rel. v.
Warden, 144 K Y. 535 ; Matter of Jacobs, 98 N. Y. 98 ;
People v. Ifavnor, 149 N. Y. 195 ; People v. Turner, 55
111. 280.) Unless the defendant had an evil intent he was not
guilty of the crime charged. {Stokes v. People, 53 N. Y.
179.) The indictment failed to charge a criminal offense.
( Wood v. People, 53 N. Y. 511 ; People v. Dumar, 106 N.
Y. 502 ; Tulhj v. People, 67 N. Y. 15 ; People v. Allen, 5
Den. 76 ; People v. Alhron, 140 N. Y. 130.)
Haight, J. The indictment accused the defendant of the
crime of violating section 288 of the Penal Code in that he
" did wilfully, maliciously, and unlawfully omit without law-
ful excuse, to perform a duty imposed upon him by law, to
furnish medical attendance for his said (J. Luther Pierson's)
female minor child, under the age of two years, the said minor
204 People v. Pierson. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 176.
being then and there ill and suffering from catarrhal pneu-
monia, and he, the said J. Luther Pierson, then and there
wilfully, maliciously, and unlawfully neglecting and refusing
to allow said minor to be attended and prescribed for by a regu-
larly licensed and practicing physician and surgeon, contrary
to the form of the statute in such case made and provided."
The facts disclosed upon the trial are without substantial
dispute, and are in substance as follows : The defendant and
his wife lived at Valhalla near White Plains, New York, with
an infant girl sixteen and a half months old, whom they had
adopted. In January, 1901, the child contracted whooping
cough which continued to afflict her until about the 20th day
of February, at which time catarrhal pneumonia developed,
resulting in death on the 23rd of February, 1901. The
defendant testified that for about forty-eight hours before the
child died he observed that her symptoms were of a dangerous
character, and yet he did not send for or call a physician to
treat her, although he was able financially to do so. His
reason for not calling a physician was that he believed in
Divine healing which could be accomplished by prayer. He
stated that he belonged to the Christian Catholic church of
Chicago, that he did not believe in physicians, and his relig-
ious faith led him to believe that the child would get well by
prayer. He believed in disease, but believed that religion
was a cure of disease.
In submitting the case to the jury the trial court charged,
in substance, that before the jurors could convict the defendant
they must find that he knew that the child was ill, and delib-
erately and intentionally failed or refused to call a physician,
or to give the child such medicines as the science of the
age would say would be proper that a child in its condition
should have ; that if at the time he refused to call a physician •
he knew the child to be dangerously ill, his belief constitutes
no defense whatever to the charge made. In other words, no
man can be permitted to set up his religious belief as a
defense to the commission of an act which is in plain violation
of the law of the state. The jury rendered a verdict of guiluy
1903.] People v. Pierso*. 205
N. Y. Uep.] Opinion of the Court, per Haight, J.
of the crime as charged. The Appellate Division has reversed,
but, as we have seen, has examined the facts and found no
error therein, but rests its reversal upon what it considers to
be errors of law. The majority of the court appears to have
entertained the view that the indictment failed to charge a
criminal offense, for the reason that it did not contain an
allegation that the case was one in which a regularly licensed
and practicing physician ought to have been called.
Section 288 of the Penal Code, so far as is material upon
the question under consideration, provides as follows : " A
person who, 1. Wilfully omits, without lawful excuse, to per-
form a duty, by law imposed upon him, to furnish food,
clothing, shelter, or medical attendance to a minor, * * *
or, 4. Neglects, refuses or omits to comply with any pro-
visions of this section, * * * is guilty of a misdemeanor."
It would seem that the legislative intent in adopting this
provision of the Code is reasonably clear, although possibly
more precise language could have been employed. It con-
templates that there are persons upon whom the law casts a
duty of caring for minors, but it does not epecify the persons.
They are, however, those upon whom the duty is " by law
imposed." They are designated in the statutes and in the
common law as the parents, guardians, or those who by
adoption or otherwise have assumed the relation in loco
parentis. The duty of suoli a person is specified by the pro-
visions of the section. It is " to furnish food, clothing, shelter,
or medical attendance." Giving the statute a reasonable con-
struction by applying the rule of necessity, it is apparent that
it means the necessary food, clothing, shelter or medical
attendance required for the preservation of the health and
life of the child. We quite agree that the Code does not con-
template the necessity of calling a physician for every trifling
complaint with which the child may be afflicted which in
most instances may be overcome by the ordinary household
nursing by members of the family ; that a reasonable amount
of discretion is vested in parents, charged with the duty of
maintaining and bringing up infant children ; and that the
206 People v. Pierson. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 176.
standard is at what time would an ordinarily prudent person,
solicitous for the welfare of his child and anxious to promote
its recovery, deem it necessary to call in the services of a
physician. But is it necessary that all of this should be
set forth in the indictment? The indictment has alleged
that the defendant unlawfully omitted to perform a duty
imposed upon him, to furnish medical attendance for the
child. If the medical attendance was not necessary, it was not
a duty required of the defendant to furnish it; but if it was
necessary, then it was his duty to f urnisii it, and his failure to do
so would be an unlawful omission to perform a duty imposed,
as charged in the indictment. We, therefore, think that the
criticism made upon the indictment cannot be sustained.
It is now contended that section 2S8 of the Penal Code
does not in terms, or in effect, make it the duty of any one to
furnish medical attendance to a minor child, and that under
the common law it is not part of the duty of parents to pro-
vide medical attendance for their children. "We have already
considered, in part, the provisions of the section and have
indicated our conclusion that the clause, "a duty by law
imposed," as found in this section, had reference to the person
upon whom the law imposed the duty of caring for minors,
leaving it to the provisions of the section to particularize as to
the character of those duties. In other words, that the section,
properly construed, means that a person upon whom the law
has imposed the duty to care for a minor, who willfully omits
without lawful excuse to furnish such minor with necessary
food, clothing, shelter or medical attendance, is guilty of a
misdemeanor. Under this construction of the statute, the
duty of parents to furnish medical attendance for their
children is expressly provided for, and is made obligatory
upon them, even if they were exempt from such duty under the
common law. These views arc in harmony with section 289 of
the Penal Code, which provides that "A person who: 1. Wil-
fully causes or permits the life or limb of any child actually
or apparently under the age of sixteen years to be endangered,
or its health to be injured, or its morals to become depraved,
1903.] People v. Pierson, 207
N. Y. Rep.] Opinion ofthe Court, per Haight, J.
* * * is guilty of a misdemeanor," and are also in accord
with the view taken by this court in the case of Cowley v.
People (83 N. Y. 464), in which the judgment of conviction
was sustained, where the indictment charged the injury to the
child's health by reason of a neglect to furnish and administer
to it proper and sufficient medicine and furnish proper medi-
cal attendance, under the latter section of the Code.
"We are thus brought to a consideration of what is meant by
the term " medical attendance." Does it mean a regularly
licensed physician, or may some other person render " medi-
cal attendance? " The foundation of medical science was laid
by Hippocrates in Greece five hundred years before the Chris-
tian era. His discoveries, experiences and observations were
further developed and taught in the schools of Alexandria
and Salerno, and have come down to us through all the inter-
vening centuries, yet medicine as a science made but little
advance in northern Europe for many years thereafter ; prac-
tically none until the dawn of the eighteenth century. After
the adoption of Christianity by Rome and the conversion of
the greater part of Europe, there commenced a growth of
legends of miracles connected with the lives of great men who
became benefactors of humanity. Some of these have been
canonized by the church, and are to-day looked upon by
a large portion of the Christian world as saints who had
miraculous power. The great majority of miracles recorded
had reference to the healing of the sick through Divine inter-
vention, and so extensively was this belief rooted in the minds
of the people that for a thousand years or more it was consid-
ered dishonorable to practice physic or surgery. At the Lateran
Council of the church, held at the beginning of the thirteenth
century, physicians were forbidden, under pain of expulsion
from the church, to undertake medical treatment without call-
ing in a priest ; and as late as two hundred and fifty years
thereafter Pope Pius V renewed the command of Pope Inno-
cent by enforcing the penalties. The curing by miracles, or
by interposition of Divine power, continued throughout Chris-
tian Europe during the entire period of the Middle Ages,
208 People v. Pierson. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 176.
and was the mode of treating sickness recognized by the
church. This power to heal was not confined to the Catholics
alone, but was also in later years invoked by Protestants and
by rulers. We are told that Henry VIII, Queen Elizabeth,
the Stuarts, James I and Charles I, all possessed the power
to cure epilepsy, scrofula and other diseases known as the
king's evil ; and there is incontrovertible evidence that Charles
II, the most thorough debauchee who ever sat on the Eng-
lish throne, possessed this miraculous gift in a marked degree,
and that for the purpose of effecting cures he touched nearly
a hundred thousand persons.
With the commencement of the eighteenth century a num-
ber of important discoveries were made in medicine and
surgery which effected a great change in public sentiment,
and these have been followed by numerous discoveries of
specifics in drugs and compounds. These discoveries have
resulted in the establishment of schools for experimants and
colleges throughout the civilized world for the special educa-
tion of those who have chosen the practice of medicine for
their profession. These schools and colleges have gone a
long way in establishing medicine as a science, and such it
has come to be recognized in the law of our land. By the
middle of the eighteenth century the custom of calling upon
practitioners of medicine in case of serious illness had become
quite general in England, France and Germany, and, indeed,
to a considerable extent throughout Europe and in this coun-
try. From that time on the practice among the people of
engaging physicians has continued to increase until it has
come to be regarded as a duty, devolving upon persons having
the care of others, to call upon medical assistance in case of
serions illness. Schouler, in his work on Domestic Relations,
at page 318, speaking upon the subject of parental duty in the
maintenance of children, says : " It is a plain precept of uni-
versal law that young and tender beings should be nurtured
and brought up by their parents; and this precept have all
nations enforced." And again, at page 5±8, speaking upon
the subject of what constitutes necessary maintenance, he
1903.] Pkoplk v. Piersox. 209
N. Y. Ilep.] Opinion of the Court, per Haight, J.
says : " Food, lodging, clothes, medical attendance, and educa-
tion, to use concise words, constitute the five leading elements
iu the doctrine of the infant's necessaries." In England the
first statute upon the subject to which our attention has been
called, was that of 31 and 32 Vict., chapter 122, section 37,
which made it the duty of persons having the care of infants
to provide them with " medical aid." This statute was
amended in 1894 by 57 and 58 Vict., chapter 41, so as to read
substantially the same as section 289 of our Penal Code, to
which we have referred. Our own statute upon the subject
was adopted as part of the Penal Code, chapter 676 of the
Laws of 1881, containing the section under which the defendant
is indicted.
Formerly, no license or certificate was required of a person
who undertook the practice of medicine. A certificate or
diploma of an incorporated medical college was looked upon
by the public as furnishing the necessary qualification for a
person to engage in the practice of such profession. The
result was that many persons engaged in the practice of medi-
cine who had acquired no scientific knowledge with reference
to the character of diseases or of the ingredients of drugs that
they administered, some of whom imposed upon the public by
purchasing diplomas from fraudulent concerns and advertising
them as real. This resulted in the adoption of several statutes
upou the subject. The first statute to which we call attention
is chapter 513 of the Laws of 1880, in which every person,
before commencing to practice physic and surgery, is required
to procure himself to be registered in the office of the clerk of the
county where he intends to practice, giving the authority under
which he claims the right to engage in the profession, either by
diploma or license, and makinga violation of the provisions of
the act a misdemeanor. Although this statute was an amend-
ment of chapter 746 of the Laws of 1872, it is the first statute
that we have found which prohibits the practice of medicine by
any other than a person possessing a diploma from a medical col-
lege conferring upon him the degree of doctor of medicine, or
a certificate from the constituted authorities giving him the
14
210 People v. Pierson. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 176.
right to practice. This was followed by the Laws of 1887,
chapter 647, entitled, " An act to regulate the licensing and
registration of physicians and to codify the medical laws qi
the state of New York," which has been further amended and
carried into the Public Health Law of 1893, sections 140-153
inclusive, in which there is an absolute prohibition to practice
physics unless the person be a regularly licensed physician in
accordance with the provisions of the act.
It will be observed that the provision of the Penal Code
under consideration was first adopted in 1881 following the
statute of 1880 prohibiting the practice of medicine by other
than physicians duly qualified in accordance with the provi-
sions of the act. This, we think, is significant. The legisla-
ture first limits the right to practice medicine to those who
have been licensed and registered or have received a diploma
from some incorporated college conferring upon them the
degree of doctor of medicine, and then the following year it
enacts the provision of the Penal Code under consideration,
in which it requires the procurement of medical attendance
.under the circumstances to which we have called attention.
We think, therefore, that the medical attendance required by
die Code is the authorized medical attendance prescribed by
the statute, and this view is strengthened from the fact that
the third subdivision of this section of the Code requires
nurses to report certain conditions of infants under two weeks
of age " to a legally qualified practitioner of medicine of tlie
city, town or place where such child is being cared for," thus
particularly specifying the kind of practitioner recognized by
the statute as a medical attendant.
The remaining question which we deem it necessary to con-
sider is the claim that the provisions of the Code are violative
of the provisions of the Constitution, article 1, section 3,
which provides that " The free exercise and enjoyment of
religious profession and worship, without discrimination or
preference, shall forever be allowed in this state to all man-
kind ; and no person shall be rendered incompetent to be a
witness on account of his opinions on matters of religious
1903.] People v. Pierson. 2ll
N. Y. Rep.] Opinion of the Court, per Haight, J.
belief; but the liberty of conscience hereby secured shall not
be so construed as to excuse acts of licentiousness, or justify
practices inconsistent with the peace or safety of this state."
The peace and safety of the state involves the protection of
the lives and health of its children as well as the obedience to
its laws. Full and free enjoyment of religious profession and
worship is guaranteed, but acts which are not worship are not.
A person cannot, under the guise of religions belief, practice
polygamy and still be protected from our statutes constituting
the crime of bigamy. He cannot, under the belief or profes-
sion of belief that he should be relieved from the care of
children, be excused from punishment for slaying those who
have been born to him. Children when born into the world
are utterly helpless, having neither the power to care for, pro-
tect or maintain themselves. They are exposed to all the ills
to which flesh is heir, and require careful nursing, and at
times, when danger is present, the help of an experienced phy-
sician. But the law of nature, as well as the common law,
devolves upon the parents the duty of caring for their young
in sickness and in health, and of doing whatever may be
necessary for their care, maintenance and preservation, includ-
ing medical attendance if necessary, and an omission to do this
is a public wrong which the state, under its police powers,
may prevent. The legislature Ja the sovereign power-jof the
state. It may enact laws for the maintenance of order by
prescribing a punishment for those who transgress. While
it has no power to deprive persons of life, liberty or prop-
erty without due process of law, it may, in case of the
commission of acts which are public wrongs or which are
destructive of private rights, specify that for which the punish-
ment shall be death, imprisonment or the forfeiture of prop-
erty. (Barker v. People, 3 Cow. 686-704 ; Lawton v. Steele,
119 N. Y. 226-236; Thurloio v. Commonwealth of Mass., 5
How. [U. S.] 504-583.)
We are aware that there are people who believe that the
Divine power may be invoked to heal the sick, and that faith
is all that is required. There are others who believe that the
212 People v. Pikrson. [Oct.,
Opinion per Cullen, J. [Vol. 176.
Creator has supplied the earth, nature's storehouse, with
everything that man may want for his support and main-
tenance, including the restoration and preservtion of his
health, and that he is left to work out his own salvation,
under fixed natural laws. There are still others who believe
that Christianity and science go hand in hand, both proceed-
ing from the Creator ; that science is but the agent of
the Almighty through which he accomplishes results, and
that both science and Divine power may be invoked together
to restore diseased and suffering humanity. But, sitting
as a court of law for the purpose of construing and deter-
mining the meaning of statutes, we have nothing to do
with these variances in religious beliefs and have no power to
determine which -is correct. We place no limitations upon the
power of the mind over the body, the power of faith to dispel
disease, or the power of the Supreme Being to heal the sick.
We merely declare the law as given us by the legislature. We
have considered the legal proposition raised by the record, and
have found no error on the part of the trial court that called
for a reversal. The other questions in the case involve ques-
tions of fact which are not brought up for review, and con-
sequently are not before us for consideration.
The order of the Appellate Division reversing the judg-
ment of conviction should be reversed, and the judgment of
conviction of the trial court affirmed.
Cullen, J. I concur in the opinion of Judge Haight
The State as parens jiatrux is authorized to legislate for the
protection of children. As to an adult (except possibly in the
case of a contagious disease which would affect the health of
others) I think there is no power to prescribe what medical
treatment he shall receive, and that he is entitled to follow
his own election, whether that election be dictated by relig-
ious belief or other considerations.
Parker, Ch. J., Bartlett, Vann, Cullen and Werner,
J J., concur; Martin, J., not voting.
Order reversed, etc.
1903.] Matter of Brooklyn Union El. R. R. Co. 213
N. Y. ltep.] Statement of case.
In the Matter of the Petition of the Brooklyn Union
Elevated Railroad Company, Respondent, Relative to
Acquiring Title to a Right of Way on Lexington Avenue
and Other Streets iu the Borough of Brooklyn in the City
of 2sew York ; Theodore B. Case, Appellant.
Costs— What Costs May Bk Recoyeked by Landowner Success-
fully Depending Condemnation Proceeding Instituted under
Section 3372 of Code of Civil Procedure. Where the compensation
awarded to the owner of real property, by the commissioners in a con-
demnation proceeding instituted under section 3872 of the Code of Civil
Procedure, exceeds the amount offered by the corporation seeking to
condemn the property, with interest from the time the offer was made,
the landowner is entitled to recover the same amount of costs that a
defendant may recover under section 3251 of the Code of Civil Procedure
when he has prevailed in an action in the Supreme Court after a trial;
ten dollars costs for proceedings before notice of trial and fifteen dollars
after notice of trial, with thirty dollars costs for a trial of an issue of fact
and ten dollars for a trial occupying more than two days.
Matter of Brooklyn Union El. R. R. Co., 82 App. Div. 567, reversed.
(Argued October 6, 1903; decided October 13, 1903.)
Appeal by permission from an order of the Appellate
Division of the Supreme Court in the second judicial depart-
ment entered April 17, 1903, which reversed an order of
Special Term retaxing a bill of costs.
The facts, so far as material, and questions certified, are
stated in the opinion.
Cyrus Y. Washburn for appellant. The state legislature,
in enacting title 1 of chapter 23 of the Code of Civil Pro-
cedure, intended and did grant a defendant, entitled to costs
under section 3372, the same amount as costs as a defendant
is entitled to under section 3251 of the Code, when he has
prevailed in an action in the Supreme Court after a trial.
(M. R. R. Co. v. Taber, 78 Hun, 434; M. R. R. Co. v.
McKee, 1 App. Div. 488 ; M. R. R. Co. v. Kent, 80 Hun,
557; IT. Co. v. N. F., L. E. <& W. R. R. Co., 83 Hun, 407;
214 Matter of Brooklyn Union El. E. E. Co. [Oct.,
Opinion of the Court, per Bartlett, J. [Vol. 176,
L. S. <& M. S. R. Co. v. Brinkman, 65 Hun, 538 ; Tompkins
v. Hunter, 149 N. Y. 117.) The defendant, under the facts
in this case, is entitled to ten dollars costs as for proceeedings
before notice of trial and fifteen dollars after notice of trial.
(Code Civ. Pro. § 3372.) The defendant, under the facts in
this case, is entitled to thirty dollars costs as for a trial of an
issue of fact, and ten dollars as for a trial occupying more
than two days. (Place v. B. W. <& C. M. Co., 28 How. Pr.
184; Meyer v. Adams, 63 App. Div. 540; William v. Vil-
lage, 72 App. Div. 505 ; Matter of S. B. R. Co., 143 N. Y.
253 ; Matter of B. E. R. R. Co., 80 Hun, 356.)
Alexander S. Lyman and George D. Yeomans for respond-
ent. The first question certified to this court it should either
decline to answer as stating an abstract proposition or should
answer in the negative. (Ilirsch v. Shea, 156 N. Y. 169;
Matter of Davies, 168 N. Y. 1S9 ; Steimoay v. von Bemuth,
167 K Y. 498 ; Matter of Robinsoti, 160 N. Y. 448 ; Schenck
v. Barnes, 156 X. Y. 316 ; Coatsworth v. L. V. R. R. Co.,
156 N. Y. 451 ; Matter of Coatsworth, 160 N. Y. 114.) The
defendant is not entitled, under the facts in this case, to costs
before and after notice of a trial or for a trial fee or for a
trial occupying more than two days. (M. R. Co. v. Kent,
145 N. Y. 595 ; Matter of X. Y., L. A W. R. Co., 26 Hun,
592 ; Matter of L. S. & M. S. R. Co., 65 Hun, 538 ; M. R.
Co. v. Taber, 78 Hun, 434 ; 3L R. Co. v. McKee, 1 App.
Div. 488 ; City of Johnstown v. Frederick, 35 App. Div. 44 ;
St. Johnsville v. Cronk, 55 App. Div. 633 ; Peck v. S. R.
Co., 170 N. Y. 298 ; People v. Charbineau, 115 N. Y. 436.)
Bartlett, J. This appeal is certified by. the Appellate
Division and three questions are submitted for the considera-
tion of this court.
This is a proceeding under the Condemnation Law of the
Code of Civil Procedure brought by the plaintiff railroad
company to acquire title to the easements or property rights
appurtenant to the premises of the defendant owner.
1903.] Matter of Brooklyn Union El. K. R. Co. 215
N. Y. Rep.] Opinion of the Court, per Bartlett. J.
An offer to the defendant was made by the plaintiff com-
pany as permitted by the Condemnation Law. No answer
was interposed, commissioners were appointed, and the pro-
ceedings were conducted thereafter nnder section 3372 of the
Code of Civil Procedure. The commissioners awarded nearly
seven times the amount as compensation for the easements or
property rights taken as that named in the offer. The court
on confirming the report of the commissioners granted the
defendant costs to be taxed in pursuance of section 3372.
The defendant presented to the clerk for taxation a bill as
follows: Before notice of trial, $10.00 ; after notice of trial,
$15.00 ; trial fee, $30.00 : trial occupied more than two days,
$10.00 ; total, $65.00.
The clerk disallowed all of these items and the defendant
moved for a retaxation, which was granted, the Special Term
allowing all the items thus rejected by the clerk. The plain-
tiff appealed to the Appellate Division where the order of
the Special Term was reversed, the court holding that the
defendant was not entitled to any statutory costs.
The learned court opens its opinion with this statement :
u If the question presented by this appeal were a new one it
might well be held that under section 3372 of the Code of
Civil Procedure a landowner who is awarded for his property
more than was offered to him by the party seeking to condemn
it, is entitled to recover costs as though a trial had been had.
But a different view has been so often taken by courts of con-
current jurisdiction that we deem a contrary rule to be estab-
lished by authority."
This statement is followed by the citation of three authori-
ties which will be presently examined.
It will be profitable to consider at the outset, briefly, the
scheme of the Condemnation Law as to trials before the court
and the commissioners.
A proceding under this statute is instituted by a petition
which is to be taken as a complaint (§ 3360). Upon presenta-
tion of the petition the owner of the property may appear and
interpose an answer (§ 3365). The issues raised by the petition
216 Matter of Brooklyn Union El. E. K. Co. [Oct.t
Opinion of the Court, per Bartlett, J. [Vol. 176.
and answer may ho tried by the 'court or sent to a referee
(§ 3367). After such trial judgment shall be entered, pursu-
ant to the direction of the court, or referee, and if in favor of
the defendant the petition shall be dismissed, with costs, to be
taxed by the clerk at the same rates as are allowed, of course,
to" the defendant prevailing in an action in the Supreme Court,
including allowances for proceedings before and after notice of
trial (§ 3369).
It is to be observed that the foregoing practice applies
exclusively to the conduct of a case where the defendant
serves an answer.
Section 3372 regulates the practice where no answer is
interposed, but an offer is either made or not made. This sec-
tion opens with the following language : " In all cases where the
owner is a resident and not under legal disability to convey
title of real property, the plaintiff, before service of his peti-
tion and notice, may make a written offer to purchase the
property at a specified price, which must within ten days
thereafter be tiled in the office of the clerk of the county
where the property is situated ; and which cannot be given in
evidence before the commissioners, or considered by them.
The owner may, at the time of the presentation of the petition,
or at any time previously, serve notice in writing of the
acceptance of plaintiff's offer, and thereupon the plaintiff may,
upon tiling the petition, with proof of the making of the offer
and its acceptance, enter an order that upon payment of the
compensation agreed upon, he may enter into possession of
the real property described in the petition, and take and hold it
for the public use therein specified ; if the order is not accepted,
and the compensation awarded by the commissioners does not
exceed the amount of the offer, with interest from the time
it was made, no costs shall be allowed to either party."
We now come to that portion of the section applicable to
the case at bar : u If the compensation awarded shall exceed
the amount of the offer, with interest from the time it was
made, or if no offer was made, the court shall, in the final
order, direct that the defendant recover of the plaintiff the
1903.] Matter of Brooklyn Union El. R. It. Co. 217
N. Y. Rep.] Opinion of the Court, per Bartlett, J.
costs of the proceeding, to be taxed by the clerk at the same
rate as is allowed, of course, to the defendant when he is the
prevailing party in an action in the Supreme Court, including
the allowances for proceedings before and after notice of trial,
and the court may also grant an additional allowance of costs,
not exceeding five percentum upon the amount awarded."
The remainder of the section has no bearing upon this
discussion.
The defendant's case falls precisely within the letter and
spirit of the provision last quoted.
The petitioner served an offer, which defendant did not
accept, but on the contrary recovered nearly seven times the
amount thereof.
As before pointed out, the Condemnation Law provides for
two forms of trial ; if an answer is served the trial is before
the court or a referee, and the defendant, if successful, is
allowed costs as of course in an action.
If there is no answer iuterposed, no offer made, or if made
not accepted and the defendant recovers a larger sum than
the amount named therein, or recovers in absence of offer, he
is allowed costs " to be taxed by the clerk at the same rate as
is allowed, of course, to the defendant when he is the prevail-
ing party in an action in the Supreme Court, including the
allowances for proceedings before and after notice of trial,
and the. court may also grant an additional allowance of costs,
not exceeding live percentum upon the amount awarded."
The authorities cited by the learned Appellate Division are
as follows : Manhattan Railway Co. v. Kent (80 Hun, 559 ;
affirmed, 145 N. Y". 595, without opinion).
An inspection of the record in the above case shows that
the proceeding Svas not governed by the provisions of section
3372.
As already pointed out, that section applies only where the
owner is a resident and not under any legal disability to con-
vey title to real property.
The record shows, by the petition instituting the proceed-
ings, that there were certain persons and classes of persons
218 Matter of Brooklyn Union El. K. K. Co. [Oct.,
Opinion of the Couit, per Baiitlett, J. [Vol. 176.
not in being, who upon their coming into being would have
interests in the property sought to be condemned, and upon the
presentation of the petition application was made to the court
for the appointment of an attorney to represent such persons
and classes of persons in the proceedings. Such attorney
was duly appointed and he interposed an answer on behalf of
the possible infants not in being. After issue was joined a
referee was duly appointed to determine the truth of the
allegations contained in the petition. Thereupon a trial was
duly had under section 3367 of the Code. Thereafter com-
missioners were appointed to ascertain the compensation to be
made to the defendants therein. The defendants were unsuc-
cessful in their efforts to tax the costs of an action in the pro.
ceeding before the commissioners, the. courts holditijg that
under the circumstances it was a mere assessment of damages.
No part of this proceeding was under section 3372 of the Code.
The trial, as already pointed out, was under section 3367, and
the proceedings before the commissioners were a mere assess-
ment of damages at the foot of the judgment entered at the
trial.
The next case cited is City of Johnstown v. Frederick (35
App. Div. 44). In that case, upon the presentation of the
petition of plaintiff for the condemnation of the real estate
therein described, the defendants interposed an answer. A
trial was had before a referee, and on his report judgment was
entered in favor of the plaintiff. It was there held that
the assessment of damages before the commissioners after this
judgment did not entitle defendants to costs as in the trial of
an action. The trial was under section 3367 of the Code.
The last case cited is Village of St. Johnsville v. Cronh
(55 App. Div. 633). In that case no answer was served and
no offer was made by the petitioner. The absence of an offer
distinguishes it from the case at bar. The able dissenting
opinion of Mr. Justice Kellogg, however, makes it clear that
the case was governed by section 3372 and was improperly
decided.
The foregoing cases are distinguishable from the one at bar.
1903.] People v. Montgomery. 219
N. Y. Rep.] Statement of case.
We are not dealing, at this time, with proceedings before the
commissioners where the case has proceeded to judgment
after answer under section 3367, or where no offer is made by
plaintiff under section 3372.
The provisions of section 3372 are very clearly expressed
and there is no occasion for construction.
The appellant was entitled to have his costs taxed at $65.00,
made up of the items allowed by the Special Term.
The following questions have been certified to us, all of
which we answer in the affirmative :
u First. Did the Legislature in enacting title 1 of chapter
XXIII of the Code of Civil Procedure and the acts amendatory
thereof and supplementary thereto intend to grant a defend-
ant, entitled to costs under section 3372 of said chapter, the
same amount as costs as a defendant is entitled to under sec-
tion 3251 of the Code when he has prevailed in an action in
the Supreme Court after a trial ?
" Second. Is the defendant, under the facts in this case,
entitled to ten dollars costs as for proceedings before notice of
trial and fifteen dollars after notice of trial ?
" Third. Is the defendant, under the facts in this case
entitled to thirty dollars costs as for a trial of an issue of fact
and ten dollars as for a trial occupying more than two days ? "
The order of the Appellate Division should be reversed,
and that of the Special Term affirmed, with costs.
Parker, Ch. J., O'Brien, Martin, Vann, Cullen and
Werner, JJ., concur.
Order reversed, etc.
The People of the State of New York, Respondent, v.
Harvey D. Montgomery, Appellant.
1. Crimes — Uxoricide — Evidence of Reputation for Unchasttty
of Defendant's Alleged Paramour Incompetent upon the Ques-
tion of Motive — Code Cr. Pro. § 542. Upon the trial of an indict-
ment for the murder of a husband or wife specific acts, declarations, con-
duct and occurrences tending to show improper relations with a person
of the opposite sex are competent evidence upon the question of motive;
220 People v. Montgomeby. [Oct.,
Statement of case. [Vol. 176.
but evidence as to the reputation for unchastity of the alleged paramour
is incompetent; its reception constitutes reversible error and is not an error
that can be overlooked as technical or unsubstantial under section 542 of
the Code of Criminal Procedure.
2. Duty of Trial Court as to a Theory of the Prosecution
Wholly Unsupported by Evidence. Where in order to sustain a theory
of the prosecution that the defendant had quarrelled with his wife and
had assaulted her with a wooden stick, fracturing her skull, and to escape
exposure had shot her, a stick found in the room where her body lay is
Introduced in evidence, but there is an utter failure of proof to support such
theory, the court should have directed the attention of the jury to that fact
and should have restrained the counsel for the prosecution in his summary
from commenting upon a theory that had collapsed for want of evidence;
and its refusal upon the request of defendant's counsel to charge that
there was no evidence that the stick had been used by the defendant in
the commission of an assault upon the deceased prior to the shooting,
followed by arguments of the counsel for the prosecution in support of
such theory and by a charge tending to dignify the theoretical assault into
a reality, constitute errors for which a judgment of conviction must be
reversed.
(Argued June 16, 1903; decided October 18, 1903.)
Appeal from a judgment of the Supreme Court, rendered
at a Trial Term for the county of Delaware June 23, 1902,
upon a verdict convicting the defendant of the crime of
murder in the first degree.
The facte, so far as material, are stated in the opinion.
Robert 2L Moore, Edward O'Connor and C JR. G* Con-
nor for appellant. The court committed reversible error
in receiving evidence tending to establish the fact that
Harriet Wood was a woman of bad repute. (People v.
Benham, 160 N. Y. 420; People v. Straight, 148 N. V.
566 ; People v. Corey, 148 N. Y. 476.) It was reversible
error for the trial court to refuse, at the close of the evidence,
to strike out the evidence in regard to the stick of wood
which was found in the bedroom, the morning after the
tragedy, on the ground that there was only one count in the
indictment, and that charges the killing to have been accom-
plished by a gunshot wound through the head, and not other-
wise, and that such evidence was incompetent and inadmis-
sible. (People v. Dtnnar. 106 N. Y. 502; Code Civ. Pro.
1903.J Peoplk v. Montoomkky. 221
K. Y. Rep.] Opinion of the Court, per Werner, J.
§§ 278, 279 ; People v. Klipfel, 160 N. Y. 374 ; People v.
Pwkins, 153 N. Y. 586.)
George A. Fisher, District Attorney {Edwin D. Wagner
of counsel), for respondent. The exceptions taken by the
defendant to the evidence relating to a maple stick found on
the bureau in the bedroom where the tragedy was committed,
to the refusal of the court to strike it out, to the remarks of
counsel in summing up, and to some portions of the charge
relating to the same stick, cannot be sustained. {People v.
Smith, 172 N. Y. 228 ; People v. Newfield, 165 N. Y. 43 ;
People v. Wennerholm, 166 N. Y. 567 ; Greenfield v. People,
85 N. Y. 75; People v. Sullivan, 173 N. Y. 122; Rogers on
Expert Testimony [2d ed.], 486, § 207.) The evidence bear-
ing upon the relations existing between the defendant and
one Harriet Wood, both before the marriage of Montgomery
to his second wife and during their wedded life, was prop-
erly received. (People v. Harris, 136 N. Y. 433 ; People
v. Buchanan, 145 N. Y. 1 ; People v. Scott, 153 N. Y. 40;
People v. Benham, 160 N. Y. 402, 437.)
Werneb, J. The gruesome tragedy out of which this
appeal arises took place in the town of Hobart, Delaware
county, on the 30th day of March, 1901, when Amelia B.
Montgomery came to her death by means of a bullet wound
inflicted by her husband, the defendant, who was subsequently
tried and convicted upon the charge of murder in the first degree.
The death and its cause having been established beyond
controversy, the dominating issue of the trial was whether the
act of the defendant proceeded from a conscious, sane, respon-
sible mind, or whether it was an accident due to a seizure,
said to be epileptic in its nature, as a result of which the
defendant unconsciously or involuntarily caused his wife's
death. Much evidence was adduced upon this issue. The
prosecution presented a case which tended to invest the defend-
ant's act with the elements of motive, premeditation, delibera-
tion and sanity. The defense sought to establish the irresponsi-
bility of the defendant, but, as the sequel shows, without success.
222 People v. Montgomery. [Oct.,
«
Opinion of the Court, per Werner, J. [Vol. 176.
If , therefore, the sole question presented by this record were
whether the verdict is supported by the weight of the evidence,
we could not reverse the judgment without invading the prov*
ince of the jury, for there was competent evidence upon every
branch of the case which raised a substantial issue of fact.
There are presented for our consideration, however, many
exceptions taken by the defense to the rulings of the learned
trial court, and, after a careful examination of them all, we
have arrived at the conclusion that two of these rulings appear
to be so seriously erroneous as to necessitate a new trial. In
view of this fact and of the concession of the defense that the
killing of Amelia B. Montgomery was the act of the defend-
ant, we may safely tod materially shorten the discussion of
the case by confining our review to the matters which bear
upon these two rulings.
The proof as to motive or motives proceeded along several
distinct lines. Upon one branch of this question the prosecu-
tion produced evidence showing that during nearly the whole
of the interval between the death of defendant's first wife in
June, 1896, and his subsequent marriage in March, 1900, one
Harriet Wood had lived with him as his housekeeper. She
remained in his employ until the early autumn of 1900, or
several months after his second marriage. It was contended
for the prosecution that during this interval, between 1896 and
1900, the defendant had formed an illicit alliance with Harriet
Wood, which, if not actually continued after defendant's sec-
ond marriage, was covertly cherished by him, causing discord
between him and his second wife and creating one of the
•motives which inspired the commission of the crime charged
in the indictment.
In support of this theory the prosecution addbced evidence
showing that in the spring of 1900, the defendant, with three
hired men and Harriet Wood, went to the Kaaterskill moun-
tains, where the defendant had a contract to supply certain
hotels and cottages with dairy products during the summer
season, and lived there together for three or four days before
the defendant went back to Hobart for his wife. These hired
1903.] People v. Montgomery. 223
N. Y. Rep.] Opinion of the Court, per Wekneh, J.
men testified that they 6lept upstairs but that the defendant
and Harriet Wood did not sleep there ; that they did not
know where they slept and that there was only one bed down-
stairs that they knew of. One of the men, Haynor, testified
to a conversation with the defendant in which the latter took
him to task for talking about Harriet Wood at the neighbor-
ing hamlet of Jewett Center, and said, " there is no use of
going to my wife and reporting anything concerning anything
that has been or what is done ; what a woman doesn't know
never made her head ache and such little things wont come
out very well." This witness also testified that on one occa-
oion when he was near the barn and Harriet Wood was out-
side of the house, the defendant called to her from a window,
where he stood with his body nude as far down as the chest ;
that she went to the window and there the two conversed
while he stood thus exposed. He also referred to a conversa-
tion between the defendant and his wife disclosing some
difference of opinion between the latter and Harriet Wood,
as to which one should deliver cream and butter to Mrs. Sur-
graft, and he stated that defendant sometimes sent his wife
away with cream and butter in the evening so that she did
not return until the following morning.
Another witness, Hollicus, who worked for the defendant
from February to the latter part of May in 1900, testified to
a conversation between the defendant and Harriet Wood
shortly before the latter left the former. This witness stated
that the defendant came into the barn at milking time, when
Harriet Wood said to him: "Harvey, I didn't think you
would give me up in this way, or as easy as that, and he burst
out crying and called her in one end of the barn and went
talking to her. I could not hear what he said. After they
got out there I don't know-how long they talked ; should think
fifteen or twenty minutes, half an hour, or something like
that. She went away next day. Harvey Montgomery took her
away. They went in the morning, he came back next day ;
was gone over night." This witness also testified that Mrs.
Montgomery objected to Harriet Wood's driving her horse.
224 People v. Montgomery. [Oct.,
Opinion of the Court, per Werner, J. [Vol. 176.
Another hired man, Gray, testified that defendant requested
him to ask Harriet Wood to stay with defendant when she
was talking of leaving.
There was also evidence to the effect that in the January
preceding the homicide the defendant went several times to a
Mrs. Clark in Hobart to ascertain if she did not want a good
girl for housework, with the result that Harriet Wood com-
menced work at Clark's on February 1st, 1901. This was
closely followed by another visit from the defendant, at which
he arranged with Mrs. Clark to furnish her with milk, and
continued to do so until after the homicide. During this
period defendant called at Clark's a number of times and
usually saw Harriet Wood. -
It was further shown that on the day of the homicide there
was a conversation between the defendant and one Stevens, in
which the former asked the latter and his wife to go up and
take charge of the Kaaterskill contract, and when Stevens
demurred on the ground of his incompetency, the defendant
said he would write a letter to Harriet Wood and get her to
go with them, to which Stevens replied that his wife would
not go with her. Several witnesses also testified that imme-
diately after the homicide Harriet Wood and the doctor were the
only persons whom the defendant requested to have sent for.
To offset the force and effect of the foregoing circum-
stances upon the question of motive, the defense invoked a
number of explanations and facts which appear in the record.
We shall refer to only a few of them. The defendant was a
man fifty-nine years of age. He was a farmer extensively
engaged in raising hogs, and conducted a dairy in the Cats-
kills. These enterprises required hired men, some of whom
boarded with him. He became a widower in 1896, and until
his marriage in 1900 he needed a housekeeper. In these con-
ditions he secured the services of Harriet Wood, who remained
with him for a number of years. Members of defendant's
family and others who had worked for him testified that they
had never witnessed any improper conduct between him and
Harriet Wood. From these and other matters which bore
1903.] People v. Montgomery. 225
N. Y. Rep. J Opinion of the Court, per Werner, J.
upon the relations of the defendant and Harriet Wood, the
defense argued that, even admitting all that was testified to
in this behalf by the witnesses for the prosecution, nothing
had been shown that was at all inconsistent with such an
innocent and respectable intimacy as would be the natural
outcome of a long period of constant association between a
man and woman under the same roof in a rural community.
The specific facts and circumstances thus presented by the
prosecution and defense, respectively, to throw light upon the
relations of the defendant and Harriet Wood, raised a legiti-
mate issue upon the question of motive which it was proper
to submit for the consideration of the jury.
But the prosecution, not content with seeking to establish
specific improprieties between the defendant and Harriet
Wood, went further and threw into the balance the latter^
reputation for unchastity. Six witnesses testified that her
reputation in that regard was bad. That this evidence seems
to have been based largely, if not entirely, upon her associa-
tion with the defendant is not Without significance, for if the
speech of people in that community, as reflected in the testi-
mony of disinterested witnesses, characterized that association
as sinister or meretricious, it is readily perceivable that it may
have exercised a commanding influence upon the jury in
reaching a determination upon the question of motive. The
evidence of Harriet Wood's reputation for unchastity was
directed to the question of motive and to no other. That
question obviously bore a very intimate relation to the defend-
ant's plea of irresponsibility, and it seems to bo reasonably
clear that if it was error to admit the evidence of Harriet
Wood's reputation, it cannot be assumed to have been harm-
less to the defendant. We address ourselves, then, to the
question whether the evidence of Harriet Wood's reputation
for unchastity was competent.
It is the settled law of this state that upon a trial for the
murder of a husband or wife, the improper relations of the
accused survivor with persons of the opposite sex may be
given in evidence upon the subject of motive. (People v.
15
226 People v. Montgomery. [Oct.,
Opinion of the Court, per Werner, J. [Vol. 176.
Hendrickson, 8 How. Pr. 404 ; People v. Nileman, 8 N. Y.
S. K. 300 ; Stephens v. People, 19 K Y. 549 ; iVqpfe v. Stout,
4 Park. Crim. Cm. 71 ; Pierson v. i>pk, 79 N. Y. 424 ;
People v. Harris, 136 N. Y. 423 ; People v. Benham, 160 N.
Y. 402 ; People v. &»#, 153 N. Y. 40 ; People v. Buchanan,
145 N. Y. 1.) The same rule obtains in many other states.
{State v. Watkins, 9 Conn. 47 ; Hall v. £&*&, 40 Ala. 698 ;
Johnson v. State, 94 Ala. 35 ; O'Brien v. Commonwealth, 89
Ky. 354 ; /Sfcafe v. Duestrow, 137 Mo. 44 ; Duncan v. £fote,
88 Ala. 31 ; Pettit v. ^tate, 135 Ind. 393 ; St. Louis v. State,
8 Neb. 405 ; Stricklin v. Commonwealth, 83 Ky. 566, and
People v. Brown, 130 Cal. 591.) It is supported in such
text works as Lawson on Presumptive Ev. (p. 495) ; Wills on
Cir. Ev. (6th Am. ed. p. 41); Burrill on Cir. Ev. (p. 285);
Underhill on Crim. Ev. (sec. 323), and is doubtless the law
wherever the principles of the common law prevail. The
reason of the rule has been stated in great variety of language,
but the substance of it is that evidence of this character tends
to repel the presumption of love and affection that arises out
of the marital relation, and to establish a motive for the
desire to get rid of one who, under normal conditions, would
be the natural object of kindness and protection. Thus, as
we have said, the facts and inferences which were based upon
specific occurrences, bearing upon the relations of the defend-
ant and Harriet Wood, were properly received in evidence.
Some of them, it is true, might have been discarded by the
jury as of too little probative weight and force, but they were,
nevertheless, competent for what they were worth.
The prosecution seeks to justify the evidence of Harriet
Wood's reputation for unchastity under the rule above
referred to, but it is important to note that not a single case
has been cited by counsel, nor brought to light by the
research of the court, which holds that such evidence is com-
petent. Counsel for the prosecution cite the cases of Harris,
Buchanan,, Scott and Benham {supra) to sustain their con-
tention, but none of them go further than to declare the well-
established general rule that specific acts, declarations, con-
1903.] People v. Montgomery. 227
N. Y. Rep.] Opinion of the Court, per Werner, J.
duct and occurrences tending to show improper relations with
a person of the other sex are admissible evidence against one
accused of the murder of husband or wife. The fact that the
reported cases and the text books are, at this late day, barren
of any discussion upon the admissibility of evidence as to the
reputation for tinchastity of the paramour of one accused of
wife murder, is in itself a cogent argument for the inadmissi-
bility of such evidence.
It would servo no good purpose, and would tend to undue
prolixity, to attempt a statement of the different classes of
cases in which evidence of personal reputation is admissible.
It is enough to say that it is only competent where character
is in issue. Since character, which is what a man is, cannot
be proven,* the law makes a virtue of necessity and resorts to
proof of reputation, or what people say of a man, as the next
best thing. Evidence of reputation is one of the exceptions
to the rule excluding hearsay evidence and, in common with
all the exceptions to that rule, is resorted to only because more
direct evidence is not obtainable. To this very general state-
ment it may be added that, usually, the only character or
reputation that can ever be in issue is that of a party or a wit-
ness. There are a few exceptions not germane to this discus-
sion. In the case at bar, Harriet Wood was neither a party nor
a witness. Her character was not in issue. Proof of her
reputation for unchastity served no purpose except, possibly,
to prejudice and inflame the minds of the jury against the
defendant. All the facts and circumstances bearing upon the
relations of the defendant and Harriet Wood were in evi-
dence. If they pointed with reasonable certainty to a guilty
alliance between the two, it added nothing to their weight and
cogency to go further and prove the woman's reputation for
unchastity. If, on the other hand, these facts and circum-
stances, standing alone, might have been regarded by the jury
as entirely consistent with an innocent and respectable inter-
course between this man and woman, it must follow that they
furnished no evidence of a motive for murder without being
supplemented by proof of the woman's bad reputation. In
228 People v. Montgomery. [Oct.,
Opinion of the Court, per Werner, J. [Vol. 176.
either event this evidence had a tendency to create a prejudice
against the defendant, and to injure him, without proving a
single fact against him. The specific occurrences in which
Harriet Wood and the defendant were shown to have figured
together, after the latter's second marriage, were competent
evidence against him, but the former's reputation was
not a legitimate issue in the case. Even if it had been,
there was no evidence that the defendant knew of it and
that, of itself, was a sufficient reason why it should not
have been used against him. It is to be observed, moreover,
that this evidence of Harriet "Wood's reputation, which was
not limited to the period succeeding defendant's marriage to
the deceased, related, in part at least, to a period as to which
evidence of specific acts of intimacy between Harriet Wood
and the defendant would have been incompetent against the
latter under the rule in People v. Straight (148 If. Y. 570)
where it was held that it was not competent to prove defend-
ant's relations with his alleged paramour during his separation
from his first wife, from whom he was afterwards divorced,
for the purpose of showing a motive to kill his second wife
whom he married after the occurrences proved. So much
might be said against the competency of this evidence of
Harriet Wood's reputation that it is more difficult to choose
than to find reasons for condemning it, and we shall leave the
discussion of this branch of the case with the statement that
we regard it as utterly incompetent. Since several possible
motives were assigned for the alleged murder, we are unable
to say which particular one, if any, the jury may have
ragarded as the true one, but we cannot doubt that if they
looked for a motive in the relations of the defendant and
Harriet Wood the evidence of her reputation proved a con-
trolling factor in the finding of the verdict of guilty. Thus
we are driven to the conclusion that the error in receiving
this improper evidence is not one that we can overlook as
technical or unsubstantial under the powers conferred upon
as by section 542 of the Code of Criminal Procedure.
We think it was error also for the trial court to refuse to
1903.] People v. Montgomery. 229
N. Y. Rep.] Opinion of the Court, per Werner, J.
charge, upon the request of counsel for the defense, that there
was no evidence that a certain wooden stick or bludgeon or
rolling pin, as it has been variously described, had been used
by the defendant in the commission of an assault upon the
deceased prior to the shooting. The force of this ruling
becomes apparent upon a brief recital of the facts relating to
that part of the case.
The deceased Was found in bed with a severe fracture of
the skull surrounding a bullet wound which entered the head
at the right temple bone and had its exit behind and below the
ear near the occipital bone. Her eyes were closed, Jhe bed-
clothes were tucked under her left side and shoulder, and her
hair, contrary to her usual custom upon retiring, was coiled
about her head in the same manner as she was wont to wear it
during the day. Her face, hair and the pillow upon which she
lay were badly scorched. The stick of wood in question was
found lying upon a bureau in the room. As there were no eye-
witnesses t& the shooting, and there was no superficially appa-
rent motive for it, the prosecution naturally seized upon every
theory that might give a clue to the inspiration for the deed.
One of the theories evolved by the prosecution was that the
defendant and his wife had a quarrel over the Kaaterskill
contract, a renewal of which had been obtained by the defend-
ant on that day ; that in the heat of passion engendered by
this quarrel the defendant had assaulted his wife with the
stick of wood or bludgeon, thus fracturing her skull, and that
when the defendant realized the serious consequences of his
assault he decided to kill his wife to escape exposure. The
difficulty with this theory is that, beyond the existence
of the stick, the renewal of the Kaaterskill contract and the
manner in which deceased wore her hair, there is not a frag-
ment of evidence to sustain it. The stick of wood bore no
evidence of having been used in the commission of an assault,
and was shown to have been an instrument used in the pressing
of the sleeves of women's garments. The physicians who per-
formed the autopsy, and who were called as witnesses for the
prosecution, testified that there was no such abrasion or dis-
230 People v. Montgomery. [Oct.,
Opinion of the Court, per Werner, J. [Vol. 176.
coloration of the inner skin surface as would be found in case
of severe external violence from a stick or club, and that the
entrance of a bullet fired at such close range as to scorch and
burn the face and hair of the deceased and the bed clothing,
was a sufficient cause for the fracture of the skull. There was
nothing to show that there had been a quarrel between the
defendant and his wife, and, in a word, there was an utter
failure of evidence to support the theory that the defendant
had committed an assault upon his wife before he shot her.
It is argued for the prosecution that they were entitled to
lay before the jury all the circumstances connected with the
homicide, and, therefore, it was competent to put in evidence
the stick bf wood found in the room where it occurred. That
is true to the extent that the stick of wood, in and of itself,
was no more and no less competent than any of the other
physical surroundings of the alleged crime. It was in the use
of this particular thing for a purpose' not justified by the
evidence that error was committed.
We do not coincide with the views of counsel for the
defense, that because the indictment charged murder by means
of a gunshot wound, it was error for the court to receive the
stick of wood in evidence, or to permit counsel for the prose-
cution in his opening to present to the jury the theory that
the defendant had assaulted and injured the deceased before
he shot her ; on the contrary, wo think it was proper for the
court to allow counsel to exploit that theory upon the assump-
tion that it would be followed by evidence to support it, and
in that view of the case, the stick of wood was, in the first
instance, properly received in evidence. But when the proofs
had been closed, and there had been a palpable failure to prove
the theory of assault, the court should have sharply directed
the attention of the jury to that fact, and have restrained
counsel for the prosecution, in his summary to the jury, from
commenting upon a theory that had collapsed for want of evi-
dence ; and then the court should have charged, as requested
by defendant's counsel, that there was no evidence that the
stick of wood had been used upon the deceased.
1903.] People v. Montgomery. 231
N. Y. Rep.] Opinion of the Court, per Werner, J.
None of these things were done. There was no admoni-
tion to the jury to disregard the opening statement of counsel
for the prosecution upon the theory of assault. The court
refused to charge as requested by defendant's counsel. In
his summary to the jury counsel for the prosecution was per-
mitted to say : " It may be, gentlemen, that this bludgeon was
used in the argument not with the intent or purpose of taking
her life, but it was used and the woman became unconscious,
and this man believing that he had killed his wife had resort
to the gun to finish the job. * * * Where is the evi-
dence to show that they did not have an altercation there
before she went to bed ? It is a fair inquiry to say where is
the evidence to show they did not. Where is the evidence to
show they did ? The dead woman, with her head crushed,
there in bed, is evidence that at some time during that night
there was a disturbance and a breach of friendliness between
them. With her there in her blood some one is called upon
to explain it to show what the relations were which immedi-
ately preceded this thing they called an accident. Where is
the explanation? Gentlemen, where is it? Why, never a
witness has testified to it."
These remarks of counsel were supplemented by the fol-
lowing language of the court in the course of the charge.
" In the discussion of this case another motive has been sug-
gested by the counsel for the People, and that is that the crime
of murder was committed to conceal another crime. The
theory of the prosecution is that Montgomery, in the heat of
passion or for some other cause, struck the deceased on the
head with a rolling pin which was found on the bureau at the
foot of the bed after the tragedy ; that the depression or
indentation on the left side of the forehead was made with a
blow from the instrument and that, to conceal this assault, she
was afterwards placed in bed by him and shot through the head.
In support of this theory evidence has been given tending to
show that it was a habit of the deceased to take down her hair
and braid it before retiring and that this night her hair was
not down but in a coil near the top of her head. The prose-
232 People v. Montgomery. [Oct.,
Opinion of the Court, per Werner, J. [Vol. 176.
> ■ ■ ■
cution claims that this fact, and the fact that the bedclothes
were carefully tncked under her side ; that they were not
back on the side occupied by the defendant, but drawn up
nearly to the pillow, as well as the position of the body, the
position of the arms crossed on the abdomen, and the fact
that the skull was broken and indented, shows that an assault
was made before the shot was fired and before she was placed
in bed. It is true that one of the physicians has testified that
in his opinion the dent or depression in the forehead was
caused by the ballet, but you are not bound to accept his
opinion as true. You should give to this evidence such
weight as you think it is entitled to in view of all the evidence
in the case. As I said before, when an expert states a scien-
tific fact, his opinion is speculative and theoretical, and he
states only his belief, or where some other theory is equally
consistent with the facts. If you are convinced, beyond a
reasonable doubt, from all the evidence in the case, that the
crime of assault was made by the defendant upon the deceased,
you will then determine whether it was the moving power
that impelled the defendant to shoot the deceased and, if you
are convinced, beyond a reasonable doubt, that this was the
motive that induced the act, you will give it such force and
effect as you think it entitled to, no matter what the opinion
of the physician may be as to the cause of the indentation."
We cannot 6ay that the conduct of the trial in this regard
did not affect the result. The refusal to instruct the jury that
there was no evidence of an assault prior to the homicide, fol-
lowed by the impassioned appeal of counsel and the solemn
words of the court, which tended to dignify this theoretical
assault into a reality, may well have been potent in shaping the
verdict.
The judgment herein should be reversed and a new trial
ordered.
Parker, Ch. J., Haight, Martin, Vann, Cullen, JJ. (and
Gray, J., on first ground of error discussed), concur.
Judgment of conviction reversed, etc.
1903.] Kolb v. National Surety Co. 233
N. Y. Rep.] Statement of case.
John Kolb, Appellant, v. National Surety Company,
Respondent, Impleaded with Others.
1. Subrogation — Rights of Surety Which Has Paid Judgment
Recovered in Tort against Several Joint Tort Feasors and Has
Been Subrogated to Rights of the Judgment Creditor There-
under. Where a surety company, having paid an indebtedness arising
upon a judgment recovered in tort against several defendants, for one of
whom it was surety upon an appeal from the judgment, has been subro-
gated, by an order of the court, to all of the rights and securities of the
judgment creditor under the judgment, including those arising from a
contract by which one of the judgment debtors agreed to pay a certain
sum, either before, or upon, the final determination of the action, upon the
payment of which the debtor was to be released from liability under the
judgment, the surety company is entitled to collect the sum agreed to be
paid by such debtor and have execution therefor, since the rule, that a
judgment recovered in tort is extinguished by payment and that no tort
feasor who has satisfied such judgment can compel any of his joint wrong-
doers to contribute, is based upon the principle that a court of equity
will refuse to lend its aid to those who have been guilty of illegal
conduct, or who do not come before it with clean hands, and, hence,
such rule has no application to a surety company which, by a decree
of the court, has been subrogated to the rights and remedies of the
judgment creditor, and is, in effect, in the position of a purchaser of the
judgment.
2. Same — Contract by One of Several Joint Debtors under
Judgment in Tort to Pay Part Thereof in Consideration of His
Release Theeefrom— When Such Joint Debtor Will Not Be
Relieved from Contract Because of Similar Contract Made with
Other Joint Debtors. Where one of several judgment debtors, against
whom a judgment in tort had been recovered, contracted with the judg-
ment creditor, pending an appeal from the judgment, to pay a certain
part of the judgment, in any event, in consideration of his release there-
from, such judgment debtor cannot be relieved from the agreement upon
the ground that a surety company, which had paid the judgment in full
and had been subrogated to the rights of the judgment creditor there-
under, had thereafter released another of the judgment debtors in consid-
eration of the payment by him of his proportionate part of the judgment,
where there was in both of such agreements, a reservation of the right
to enforce the judgment against the other judgment debtors.
8. Same — WnEN Judgment Debtor Not Entitled to Injunction
Restraining Surety from Enforcing His Agreement to Pay Part of
the Joint Judgment. Where the surety company, subrogated to the rights
234 Kolb v. National Surety Co. [Oct.,
Statement of case. [Vol. 176.
of the judgment creditor under such judgment, has issued an execution
against the judgment debtor who agreed to pay a certain sum upon the
judgment, in any event, in consideration of his release therefrom, the
latter cannot maintain an action in equity to restrain the enforcement
by the surety company of the judgment, through the execution, and to
compel the discharge of the judgment, since a court of equity will not
listen to one seeking to be relieved of his liability under a joint judg-
ment in tort, nor will it assist him, in violation of his express agreement,
to escape the liability which he had contracted to pay and thereby recog-
nized as existing under the judgment against him.
Kolb v. Nat. Surety Co., 73 App. Div. 619, affirmed.
(Argued June 17, 1903; decided October 13, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
May 23, 1902, affirming a judgment in favor of defendant
entered upon a dismissal of the complaint by the court on
trial at an Equity Term.
In December, 1897, Frank Smith recovered a judgment
against this plaintiff and the defendants, Theodore G. Smith
and Stephen W. Adwen, for $1,125.13, in an action to recover
damages for wrongful and malicious conduct. Adwen appealed
and gave an undertaking, with this respondent, the National
Surety Company, as surety. Subsequently, his appeal was
dismissed and the judgment was affirmed. This plaintiff,
Kolb, and Theodore Smith, defendants in the action, also,
appealed and without undertaking ; but, pending the appeal,
Kolb settled with Frank Smith, the judgment creditor, by an
agreement to pay $400, in any and all events ; which sum, at
the election of Smith, was payable before, or upon, the final
determination of the action and, upon payment whereof, he
was to be released. The agreement reserved Smith's claim
against Adwen, to the extent of, at least, one-third of the
judgment. Eventually, all appeals were dismissed; where-
upon Smith, the judgment creditor, in September, 1898, in
lien of enforcing his judgment by execution, commenced an
action against the surety company to recover the whole
1903.] Kolb v. National Surety Co. 235
N. Y. Rep.] Points of counsel.
amount of his judgment and in that action had a judgment,
in February, 1899, for $1,362.58, damages and costs. Sub-
sequently, upon application of the defendant, the surety com-
pany, it was ordered that, upon its payment to Smith of the
full amount of his judgment, it should be subrogated to all
of his rights under the judgment against Kolb and the other
original judgment debtors and to all securities, including his
contract with Kolb. Smith complied with the order, assigned
his judgments and his contract and received payment in full
of what was due him. Thereupon, the surety company,
being possessed of Smith's judgment, issued execution to the
sheriff directing him to collect from Kolb $400 and from
Theodore Smith $648.30. Adwen, the other judgment debtor,
had paid the surety company $593.13, upon its agreement
not to enforce the judgment further against him. That agree-
ment, also, reserved to the company the right to collect the
balance due on the judgment against the other judgment
debtors. Theodore Smith was insolvent and the amount
named in the execution against him represented the balance
remaining unpaid upon the judgment, after deducting the sum
of $400, agreed to be paid by Kolb and the sum of $593.13,
paid by Adwen. Upon the issuance of the execution, Kolb,
at once, commenced this action against the surety company
and the others to restrain the enforcement by the surety
company of the judgment, through the execution, and to
compel the discharge of the judgment. At the Special Term
the defendant, the surety company, was held to be entitled
to enforce the judgment assigned to it by Frank Smith, and
the plaintiff's complaint was dismissed, upon the merits. The
judgment entered upon that determination was affirmed by
the Appellate Division, in the fourth department, and the
plaintiff, Kolb, has appealed to this court.
Charles Van Voorhis for appellant. The payment of the
judgments in the malicious prosecution action extinguished
those judgments, and they could not be kept on foot for any
236 Kolb v. National Surety Co. [Oct.,
Points of counsel. [Vol. 176.
purpose. It is settled beyond dispute that contribution cannot
be enforced among wrongdoers, and that payment by one
extinguishes the judgment as to all. {Peck v. Ellis, 2 Johns.
Ch. 131 ; Miller v. Fenton, 11 Paige, 18 ; Wehle v. Haviland,
42 How. Pr. 399 ; Andrew v. Murray, 33 Barb. 354 ; Plasson
v. Shelton, 1 M. & W. 504.) Adwen could not compel con-
tribution from his joint tort feasors, and the surety company
under the doctrine of subrogation could acquire no better
right than its principal Adwen had. {Stewart v. Sonneburg,
98 U. S. 187.) If it be conceded that the surety company, as
assignee and owner of the judgment in the malicious prosecu-
tion action, was subrogated to all the rights of Frank Smith,
the plaintiff in that action, when it released the judgment
debtor Adwen, it released his joint debtors Kolb and Frank
Smith, and extinguished the judgments as to them. {Mitchell
v. Allen, 25 Hun, 543 ; Knickerbocker v. Colver, 8 Cow. Ill ;
Barret v. T. A. It. B. Co., 45 N. Y. 635 ; DeLongv. Curtis,
35 Hun, 94; Woods v. Pangburn, 75 ]ST. Y. 498.)
Nathaniel Foote for respondent. The surety company,
on payment of the judgment recovered against it upon the
undertaking, which it signed as surety, was rightfully subro-
gated to the judgments and contract held by Frank Smith,
for the same debt for which the surety company became
surety. {Bailey v. Bussing, 28 Conn. 455 ; Eddy v. Tracer,
6 Paige Ch. 521 ; 2 Beach on Mod. Eq. Juris. 797-821 ; Hays
v. Ward, 4 Johns. Ch. 123 ; Selz v. Unna, 6 Wall. 327.)
The agreement made between the surety company and
Adwen, set forth in the 6th finding of fact, by which upon
payment by Adwen of $593.13, the surety company agreed
not to enforce from Adwen the collection of any further sum
upon the judgment against him and his associates, without
prejudice, however, to the right of the surety company to
collect the balance due on the said judgment from the other
judgment debtors, did not satisfy the judgment as against
Kolb and Theodore G, Smith, as regards the balance unpaid
1903.] Kolb v. National Surety Co. 237
N. Y. Rep.] Opinion of the Court, per Gray, J.
thereon. (Irvine v. Milbank, 56 N. Y. 635; Coonley v.
Wood, 36 Hun, 559 ; Mitchell v. Allen, 25 Hun, 543.)
Gray, J. The appellant argues that, when the surety com-
pany paid the judgment recovered by Smith, the effect was
the same as though Adwen, for whom it was surety, had paid
the judgment agaiust him and his codefendants; that, as a
judgment recovered in tort, it was extinguished by the pay-
ment and that no right of contribution against this plaintiff, or
Theodore Smith, who were joint tort feasors with Adwen,
survived, or existed. The general proposition is true that
there is no right of contribution as between wrongdoers,
which can be enforced ; for a court of equity, which, alone,
would have jurisdiction of such an action, will refuse to lend
its aid to those who have been guilty of illegal conduct, or
who do not come before it with clean hands. The legal prin-
ciple, upon which contribution among those jointly indebted
rests, is as just when wrongdoers are concerned, as in other
cases where it is allowed, and the refusal of a court to enter-
tain an action to compel it is based upon considerations of the
nature of the complainant's liability and the association of the
parties who incurred it. That this doctrine of equity would,
or should, exclude from relief a surety, who, like this
respondent, has been decreed by the court to be entitled to
be subrogated to the rights and remedies of the judgment
creditor, and is, in effect, in the position of a purchaser from
the latter of the judgment, I do not believe. If there is a
precedent, I do not find it, for such extreme application of
the doctrine. In the first place a surety who pays a debt is,
by the well-settled law of the land, entitled to stand in the
shoes of the creditor, or to be subrogated to all of his rights,
remedies and securities, with respect to any fund or lien ; not
upon any contractual basis, but upon established principles of
equity, or, as said by Chancellor Kent in Cheesebrough v.
Millard (1 Johns. Ch. 412), " on mere equity and benevo-
lence." In the second place the surety in this case does not
238 Kolb v. National Surety Co. [Oct.,
Opinion of the Coutt, per Gray, J. [Vol. 176.
come within the reprobation of the court in any aspect ; for
the principle of equal contribution being a just one, even as
between wrongdoers, and the denial of its recognition resting
upon especial grounds, which would be peculiar to the com-
plainant in the bill for equitable relief, this surety is not
embarrassed by asking for that which the court had, in the
Adwen proceeding, kccorded to it. It is innocent of any
wrongdoing. That it has paid an indebtedness, arising upon
a judgment in tort against several, for one of the judgment
debtors should not, as a matter of natural justice, deprive it
of the right, approved as it is by a decree of the court, to
compel the joint debtors to contribute proportionately to the
payment of the judgment now its property. The "right of
subrogation is founded in natural justice and it should be
given effect upon purely equitable considerations.
But, if my conclusion in this respect were incorrect, there
is the further aspect of this case, that this surety, as against
this plaintiff, was seeking to compel payment by him of the
proportion of a judgment, which he, by his agreement, had
promised to pay in any event and had recognized as a debt.
The surety is acting most equitably and whether it be regarded
as standing for Adwen, or not, it is demanding, only, that
which the agreement of the appellant provided for. Both in
that agreement, as in that with Adwen, the reservation of the
surety's rights to hold the other debtors prevented a payment
upon the judgment by either from operating to discharge it,
as against the others equally liable therein. (See Gilbert v.
Finch, 173 N. Y. 455.)
But there is another conclusive objection to the maintenance
of this action and that is that this appellant does not commend
himself to the equitable consideration of the court. As a
joint tort feasor, he is subject to the operation of the rule that
a court of equity will not listen to .one seeking to be relieved
of his liability under a joint judgment in tort. He has no
more right to demand equitable intervention in his behalf, than
if the judgment creditor had assigned his judgment to some
1903.] Matter of Water Comrs. of White Plains. 239
N. Y. Rep.] Statement of case.
stranger to the parties and the purchaser was enforcing it as
against him as one of the judgment debtors. How can the
appellant come into a court of equity and ask that he be
V relieved from paying a proportion of the judgment, which he
I had agreed to pay and which, in fact, is less than what might
-t be exacted from him as his proportion ? His position is highly
inequitable ; whether he be regarded as one of several joint
tort feasors, seeking immunity from contribution ; or whether
he be regarded as violating his express agreement and as seek-
ing to escape the liability he Ijad recognized as existing under
the judgment against him.
I think the judgment appealed from is right and that it
should be affirmed, with costs.
Parker, Ch. J., Haight, Vann, Werner, JJ. (and Cul-
len, J., on last ground), concur ; Martin, J., absent.
Judgment affirmed.
In the Matter of the Petition of the Board of Water Com-
missioners of the Village of White Plains, Respondent,
to Acquire Property of the Westchester County Water
Works Company et al., Appellants.
1. White Plains (Village of) — Invalidity of Contract Made by
Authorities Thereof to Purchase Property of Water Works
Company — Agreement as to Appraisal bt Arbitrators. Where an
agreement made by and between a water works company and the author-
ities of the village of White Plains on July 1, 1886, in which the village
agreed to take and the water works company agreed to supply water for
municipal and fire purposes for a period of five years at a stipulated price,
contains a clause providing that the village should have the right at the
end of stipulated periods to purchase the water works by giving the
company one year's notice of such intention and paying to said company a
valuation to be determined and appraised by a board of arbitrators, chosen
as therein provided, such valuation in no case to exceed the cost of the
works more than ten per cent, the purchase clause is ultra vires and
void, and cannot be enforced by or against the village.
%. Same— Appraisal of Property of Water Works Company
Made by Commissioners in Condemnation Proceedings — Illegal
and Erroneous When Based upon Invalid Contract of Purchase.
240 Matter of Water Comrs. of White Plains. [Oct.,
Statement of case. [Vol. 176.
Where the board of water commissioners of the village of White Plains,
appointed by the statute (L. 189(5, ch. 769), with power to supply the vil-
lage with water and to acquire by purchase or condemnation all water,
water rights and property necessary therefor, whether owned by indi-
viduals or water companies, instituted condemnation proceedings pursuant
to such statute to acquire the property of a water works company then
supplying the village with water under the contract of July 1, 1886, and
the commissioners appointed in such proceeding instead of appraising
such property, including the good will and franchise of the company, at
its full value, as provided by the statute, refused to be governed thereby
and determined the value of the real property and plant of the company
in the manner provided for by the contract of July 1, 1886, without any
award for the franchise rights of the company, such determination and
award are illegal and erroneous and must be set aside and a new appraisal
ordered before new commissioners to be appointed by the court.
Matter of Bd. of Water Comrs. of White Plains, 71 App. Div. 544,
reversed.
(Argued June 18, 1908; decided October 18, 1908.)
Appeal from an order of the Appellate Division of the
Supreme Court in the second judicial department, entered
May 7, 1902, which affirmed an order of Special Term con-
firming a report of commissioners of appraisal in proceedings
instituted by the board of water commissioners of the village
of White Plains to acquire all the property and franchises of
the Westchester County Water Works Company.
The facts, so far as material, are stated in the opinion.
David McClure for farmers' Loan and Trust Company,
appellant. The petition should have been dismissed as not
filed by a person entitled to petition for the condemnation of
real property. (L. 1896, ch. 769, § 3 ; Code Civ. Pro. § 3359 ;
Ehrgott v. Mayor, etc., 96 N. Y. 264; Raul v. Comrs., 66
How. Pr. 368 ; N. Y. B. D. Co. v. Mayor, etc., 8 Hun, 247 ;
Swift v. Mayor, etc., 83 N. Y. 533 ; Bronh v. Riley, 2 N. Y.
Supp. 266; Matter of R. W. Comrs., 66 K Y. 413.) The
action of the commissioners was based upon an erroneous
principle of law. (Rohm v. M. E R. Co., 129 N. Y. 576 ;
Cooley Const. Iim. § 565 ; Henderson v. N. T. C. R. R. Cb.f
1903.] Matter of Water Comrs. of White Plains. 241
N. Y. Rep.] Points of counsel.
78 N. Y. 433; 6 Am. & Eng. Ency. of Law, 568; New-
man y. M. E. R. Co., 118 N. Y. 623 ; Matter of City of
Brooklyn, 143 N. Y. 596 ; Moulton v. JT. W. Co., 137 Mass.
163; 3. W.W. Co. v. Vil. of Skaneateles, 161 N. Y.
154.)
Louis Marshall for the Westchester County Water Works
Company et al., appellants. As a result of the proceedings
taken pursuant to chapter 737 of the Laws of 1873 the water
company acquired a valid franchise, unlimited as to time, to
supply the village of White Plains and its inhabitants witli
pure and wholesome water. (Matter of City of Brooklyn,
143 K Y. 596; People v. O'Brien, 111 N. Y. 1.) The
extent and nature of the franchise must be determined by the
instrument creating it, and not by any instrument subsequently
executed. (B. G. Z. Co. v. Claffy, 151 N. Y. 24; Thomas
v. R. R. Co., 101 U. S. 71 ; C. T. Co. v. Pullman Co., 139
U. S. 43 ; O. R. R. Co. v. O. R. R. Co., 130 U. S. 28 ; Sndl
v. Chicago, 152 U. S. 199 ; Black v. D. <& R. C. Co., 22 N.
J. Eq. 130 ; Abbott v. A. II. R. Co., 33 Barb. 578 ; People v.
Ballard, 134 N. Y. 269 ; Legrand v. M. 31. Assn., 80 N. Y.
638 ; Dupee v. B. W. Co., 114 Mass. 37.) The provision of
the contract of July 1, 1886, which assumes to limit the com-
pensation of the water works company to Hie cost of its works
and ten per cent in addition thereto, must be entirely disre-
garded. (Craig v. Wells, 11 N. Y. 315 ; Moss v. Stanton, 51 N.
Y. 649 ; Dennison v. Taylor, 15 Abb. [N. C] 439 ; C. & G. R
R. R. Co. v. Dane, 43 N. Y. 240 ; Stem v. Ladens, 47 App.
Div. 331 ; Moffett v. City of Goldsborough, 52 Fed. Kepr.
560.) The "purchase" clause of the contract of 1886 has no
application whatsoever to these proceedings, and the appraisers
had no right to consider the question of " cost." They were
bound to award the full value of the real estate, plant and
franchise of the water company as a going concern, with an
earning capacity in excess of its operating expenses. (M. N.
Co. v. United States, 148 U. S. 312 ; ]V. W. Co. v. JVewbury-
16
242 Matter of Water Comrs. of White Plains. [Oct:,
Opinion of the Court, per Haight, J. [Vol. 176.
port, 168 Mass. 541 ; Matter of City of Brooklyn, 143 N.
Y. 596 ; & W. W. Co. v. Vil. of Skaneateles, 161 N. Y. 154 ;
184 U. S 354.) The petitioner, the board of water commis-
sioners of the village of White Plains, had no legal capacity to
sue, in that it is not a natural person or a corporation, and
chapter 769 of the Laws of 1896 did not authorize the institu-
tion of proceedings in condemnation by such board or other-
wise than in the corporate name of the village of White
Plains. (Code Civ. Pro. §§ 3358, 3360 ; A. K Bank v.
Sage, 6 Hill, 562 ; Matter of Marsh, 71 N. Y. 315 ; Craig v.
Town of Andes, 93 N. Y. 405 ; Matter of B., etc., R. Co., 79
N. Y. 71 ; Matter of N. Y. C Co., 104 N. Y. 1 ; Matter of
B., W. & K. B. B. Co., 72 N. Y. 245 ; Matter ofN. Y. C.
& H. R. B. B. Co., 70 N. Y. 191.)
Henry T. Dykman for respondent. The claim that the
petition should be dismissed, as not filed by a person entitled
to petition for the condemnation of real property, cannot be
maintained. (L. 1896, ch. 769, § 3 ; Matter of B. W. Co.,
66 N. Y. 413.) The claim that the purchase clause set forth
in the permission to organize the corporation and incorpo-
rated in the contract was not binding on the water company
or the trustee for the bondholders, lacked mutuality and was
ultra vires, cannot be maintained. (Matter of City of Brook-
lyn, 143 K Y. 596 ; Wick v. F. P. B. S. B. Co., 50 N. Y.
Supp. 479 ; Legrand v. M. M. Assn., 80 N. Y. 638 ; South
Wales v. Bedmond, 10 C. B. [N. S.] 682 ; Beach on Corp.
963, 994 ; C. <b O. B. B. Co. v. Milkr, 114 U. S. 176.)
Haight, J. These proceedings were instituted on the 2d
day of September, 1896, by the board of water commissioners
of the village of White Plains, pursuant to chapter 769 of the
Laws of 1896, to acquire all of the real estate, property and
franchises of the Westchester County Water Works Com-
pany. They resulted in the appointment of commissioners of
appraisal who filed their report, awarding as damages for the
1903.] Matter of Water Comrs. of White Plains. 243
N. Y. Rep.] Opinion of the Court, per Haight, J.
taking of such property the sum of $103,298, upon which a
final judgment of confirmation has been entered. Upon a
review of the judgment the Appellate Division reversed so
much of the order as refused the application for an amended
report, and required an amended report to be filed by the
commissioners of appraisal. Thereupon the commissioners,
in obedience to such requirement, made a further report, in
which they stated that in making their award they intended to
cover whatever rights to transact future business in White
Plains the Westchester County Water Works Company pos-
sessed, but were, however, " unanimously of the opinion that
the company did not possess such a franchise as would entitle
it to an award based upon its annual earnings, or its future
business prospects ; the restrictive conditions with which, by
the contract of July 1st, 1886, the company's franchise was
encumbered, having, in our opinion, reduced the value of this
franchise to a sum necessarily insignificant as compared with
the value which an unrestrictive franchise would have had."
And then concluded with the statement that " We considered
that an award of, approximately, one hundred thousand dol-
lars would amply cover the value of such plant and real
estate, liberally estimated. The balance of our award was
intended to represent in part a slight overpayment for the
material properties taken, and in part a payment for the nomi-
nal and practically valueless remaining rights which the com-
pany possessed at the time of the commencement of these
proceedings." Upon the filing of this report the Appellate
Division affirmed the judgment entered upon the order of the
Special Term.
On the 14th day of May, 1886, John F. Moffett and others
requested the board of trustees of the village of White Plains
and the supervisors of the towns of Greenburg and White
Plains to consider their application to supply the village of
White Plains and its inhabitants with pure and wholesome
water, and to grant them permission to form a water works
company, under chapter 737 of the Laws of 1873, and acts
244 Matter of Water Comrs. of White Plains. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 176.
amendatory thereof and supplementary thereto. On the 28th
day of May, 1886, at a meeting of the trustees of the village
a resolution was adopted, giving permission to Moffett and
his associates to form a water works company for the pur-
pose of supplying the village with water, pursuant to the
provisions of the act above mentioned, imposing the fol-
lowing condition : " 7. The village shall have, at the end of
five years and at the end of every five years thereafter,
the right to purchase said water works in the manner as
now provided for by law." Thereafter, and on the first day
of July, 1886, an agreement was entered into by and between
the Westchester County Water Works Company, which had
theretofore been incorporated, and the village of White Plains,
in which the village agreed to take, and the water works com-
pany agreed to supply, water for municipal and fire purposes,
for a period of five years, at a stipulated price, and then pro-
vided : " The party of the second part reserves the right at
the expiration of five years from the date of the completion
of the works and at the expiration of every five years there-
after, to purchase said works as they may then exist by giving
to said company one year's notice of 6uch intention and pay-
ing to said company the appraised valuation. The amount so
paid to be determined by three persons not in the interest or
employ of said village or company, the board of trustees of
said village choosing one, the company choosing one, and these
two persons choosing a third. Such valuation by said
appraisers in no case to exceed the cost of the said works
more than ten per cent. And the decision and appraisal of
these three persons to be final and conclusive on the parties
to this contract." This agreement was renewed on the 23rd
day of July, 1892, by a written agreement, containing a num-
ber of changes, but omitted the above purchase clause, and
then concluded with the provision that " This agreement and
the agreement itself (referring to the agreement renewed)
shall remain and continue in force for the period of five years
from the date of the execution of this agreement."
1903.] Matter of Water Comrs. of White Plains. 245
N. Y. Rep.] Opinion of the Court, per Haight, J.
The water works company was the owner of four parcels
of real estate in the town of White Plains. It had laid
water mains from the source of supply to and through
the streets of the village, about seventeen miles in length.
It had erected standpipes, pumping engines, hydrants,
nozzles and other implements of machinery necessary for
carrying out its contract with the village. It had given
two mortgages upon its property to the Farmers' Loan &
Trust Company, upon which two hundred thousand dollars
in bonds had been issued, and were outstanding. Its income
during the year 1896 was $21,055.38
Its expenses 6,199 . 35
Its net earnings $14,856.03
The earnings, therefore, were more than sufficient to pay
the interest on the bonded indebtedness. It is claimed that
the cost of construction, as shown by the company's books,
was $293,067.03 ; that no dividends were paid to the stock-
holders prior to 1894, and that all of the earnings of the
company prior to that time had been devoted to the construc-
tion and extension of its plant. Its experts testified that the
property of the company was worth from three hundred
thousand to four hundred thousand dollars. The counsel for
the village has vigorously attacked the value of the com-
pany's property, and claims that the award made is largely in
excess of its true value. He does not, however, question the
amount given as the company's income from its business. It
is not our province to determine questions of fact. Our
jurisdiction is limited to the determination of questions of
law. The commissioners of appraisal have, as they state,
awarded only nominal damages for the franchises of the com-
pany and the good will of its business as a going concern,
and it becomes our duty to determine whether the appraisers
have adopted an erroneous basis in fixing the amount of their
award.
246 Matter of Water Comrs. of White Plains. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 176.
The respondents claim that the result reached by the
appraisers is unjust, and that this is practically conceded in
their report. The holders of the one hundred thousand dol-
lar bonds of the company, issued upon its second mortgage,
have had their securities taken from them and their trustee
turned out of court without any remuneration whatever.
The stockholders, who for ten years have been constructing a
plant and procuring customers for the company, have had
their property, franchises and good will taken from them
without a penny for themselves or for their creditors. The
commissioners of appraisal, recognizing the hardships or injus-
tice resulting from their determination, have said to the bond-
holders in their report, " that in so far as this decision affected
innocent holders of the second mortgage bonds of the Westches-
ter County Water Works Company, we reached it with regret."
And to the stockholders they stated that " the suggestion that
it seems rather hard on the organizers of this concern that
they should not get the full benefit of their activity and enter-
prise in building up a water business in White Plains, is, to
our minds, fully met by the fact that these gentlemen must
themselves have contemplated parting with their plant at a
price based not upon its value as a going concern, but upon
its cost of construction, when they entered into the afore-
mentioned contracts with the village." And, again, "the
main reason, the only reason, for the existence of this unfor-
tunate fact is to be found in the inadequacy of the original
franchise as restricted by the contracts between the village
and the company." The commissioners in giving their rea-
sons for their decision state that " by the contract of July 1st,
1886, the company's franchise was encumbered, having, in
our opinion, reduced the value of this franchise to a sum
necessarily insignificant as compared with the value which an
unrestricted franchise would have had." Again, speaking of
the company, they stated, " Did it possess a valuable franchise
which could be taken as a basis for the transaction of an
unlimited, or even of a limited, but prolonged amount of
1903.] Matter of Water Comrs. of White Plains. 247
N. Y. Rep.] Opinion of the Court, per Haight, J.
future business ? Our conclusion was that it did nut." It
is thus apparent that the question involved in this case
depends upon the construction, meaning and effect that is to
be given to the purchase clause embraced in the contract, to
which we have already referred.
Under the contract the valuation by the appraisers was in
no case " to exceed the cost of the said works more than ten
per cent." Were the appraisers to determine the value of the
property as it then existed ? Or were they to determine the
cost — the amount expended by the company in the con-
struction of the plant and in the establishment of its business?
If the latter, then, as we have seen, the books of the company
showed that the cost amounted at that time to nearly $300,000,
and ten per cent added would make nearly $330,000. But the
commissioners of appraisal did not adopt this basis in deter-
mining the amount of their award. They found the Value of
the visible, tangible property of the company as it then existed,
excluding the franchise and good will, independent of the
question of cost of construction, and made no finding as to
the amount of such cost. It is, therefore, apparent that they
did not follow the construction of the contract given by them-
selves in their report, in which they state : " These gentlemen
(speaking of the organizers of the company) must themselves
have contemplated parting with their plant at a price based
not upon its value as a going concern, hut upon its cost of con-
struction, when they entered into the aforementioned contract."
We, however, do not deem it advisable to rest our decision
upon any construction of the contract which may have been
given, for the case involves other questions of paramount
importance which we think must control its disposition.
The question raised by the appellants at the threshold of
the discussion in this case is to the effect that the purchase
clause incorporated in the contract of July 1st, 1886, is ultra
vires and void ; that the village of White Plains had no power
to contract for the purchase of the works or td provide for the
payment thereof. The statute then in force was chapter 181
248 Matter 6f Water Comrs. of "White Plains. [Oct,
Opinion of the Court, per Haight, J. [Vol. 176.
of the Laws of 1875, as amended by chapter 175 of the Laws
of 1881, chapter 255 of the Laws of 1883, and chapter 211 of
the Laws of 1885. That statute authorized any incorporated
village in the state to organize a board of water commis-
sioners, and such commissioners were authorized to contract
for, purchase and take by deed, in the name of the vil-
lage, all lands, streams, water, water rights or other property,
real or personal, or rights therein, which may be required for
the purpose of supplying the village or its inhabitants with
pure and wholesome water, and in case the commissioners
could not agree with the owners as to the compensation to be
paid therefor, they were authorized to institute proceedings
for the condemnation of such property rights, and upon their
petition the Supreme Court was required to appoint commis-
sioners residing in the county in which the village was located
to determine the amount to be paid therefor. These pro-
visions of the statute, however, had reference to lands, streams,
water rights, etc., belonging to individuals, and not to the
property acquired by water works corporations and already
devoted to a public use. The only provision of the statute
permitting the acquiring of the property of corporations is
section 22, and that provides : " Whenever any corporation
shall have been organized under the laws of this state for the
purpose of supplying the inhabitants of any village with water,
and it shall become or be deemed necessary by the board of
water commissioners herein authorized to be created, that the
rights, privileges, grants and properties of such corporation
shall be required for any of the purposes of this act, the com-
missioners herein authorized to be created * * * shall
have the right to make application to the Supreme Court, at
a special term thereof, held in the judicial district in which
the works of such corporation are situated, for the appoint-
ment of three commissioners of appraisement, who 6hall be
disinterested freeholders and residents of the county." The
other provisions of the statute make it the duty of the com-
missioners of appraisal to determine the amount that should
1903.] Matter op Water Combs, of White Plains. 249
N. Y. Rep.] Opinion of the Court, per Haight, J.
be paid, etc. No authority is, therefore, given to the board
of water commissioners to acquire the property of 6uch a cor-
poration by agreement. If it is deemed necessary that the prop-
erty should be acquired, the board is to apply to the Supreme
Court for the appointment of commissioners of appraisal. The
statute contains no limitation as to the time within which
such application may be made. It may, therefore, be made
at any time when the board of water commissioners see fit to
act, provided they have complied with the provisions of the
act under which they were appointed.
The company's franchise wag' a perfect grant, permitting it
to use the streets of the village for its water mains and giving
it the privilege of supplying the municipality and the inhabit-
ants thereof with water. The only restriction was the clause
which reserved the right of the village at the end of five
years and at the end of every five years thereafter to purchase
its works in the manner " as now provided for by law." The
right to purchase in the manner provided for by law already
existed under the statute, to which we have called attention,
and, therefore, this provision in the grant did not add to or
take from the grant any right or power whatever, but simply
left it subject to the provisions of the existing statute. On
the 1st day of July, after the granting of the franchise, the
contract in question was entered into to supply the munici-
pality with water for the period of five years. In the first
place it reserved the right to the village at the expiration of
five years and at the expiration of every five years thereafter
to purchase the works of the company as they may then
exist by giving to the company one year's notice of such inten-
tion and paying the appraised valuation. In the second
place the contract proceeds to specify how the valuation shall
be made, that is, by three persons, one appointed by the trus-
tees of the village, the other by the company, and the two
persons so selected choosing the third. Then follow provis-
ions limiting the valuation not to exceed the cost of the works
by ten per cent and making the decision of the appraisers
final and conclusive upon the parties,
250 Matter of Water Comrs. of White Plains. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 176.
Under the statute the board of water commissioners had
the right to apply to the Supreme Court to condemn the
property and to appoint commissioners of appraisal, while
under the contract the trustees of the village substituted an
entirely different proceeding for the acquiring of the property.
The statute, as we have seen, has not authorized the trustees
of the village to acquire such property ; that power the legisla-
ture has given to the board of water commissioners. Such board
only has the power to act for the village and make valid contracts
with reference to the acquiring of property for water works ;
the board of trustees of the village had no power to carry out
the provisions of the contract and complete the purchase of
the property thereunder, even though the water works com-
pany should consent thereto. They could not issue bonds,
borrow money, or pay therefor and make their acts binding
upon the municipality, for the reason that the statute had
given them no such powers.
The functions of municipalities, such as cities and villages,
are chiefly public, but some may be private. The general
powers of government are public. They pertain to the pow-
ers of legislation, the adoption of ordinances, the protection
of property, the care of highways, and the raising of taxes for
the support of the government. In addition to these powers
other functions are at times conferred upon municipal cor-
porations, by which they may act in their individual capacity for
their own private gain. Dillon, in his work on Municipal Cor-
porations (Vol. 1, sec. 27), says : " Powers or franchises of an
exceptional and extraordinary nature may be, and sometimes
are, conferred upon municipalities such as are frequently con-
ferred upon individuals or private corporations; thus, for
example, a city may be expressly authorized, in its discretion,
to erect a public wharf and charge tolls for its use ; or to
supply its inhabitants with water or gas, charging them there-
for and making a profit thereby. In one sense such powers
are public in their nature, because conferred for the public
advantage. In another sense they may be considered private
because they are such as may be, and often are, conferred
1903.] Matter of Water Comrs. of White Plains. 251
K Y. Rep.] Opinion of the Court, per Haight, J.
upon individuals and private corporations and result in a spe-
cial advantage or benefit to the municipality as distinct from
the public at large." At common law it was no part of the
duty of municipalities to furnish light or water for their inhab-
itants, any more than it was their duty to supply any of the
other necessaries or conveniences. The supplying of gas and
water by the municipality necessitates its engaging in business
of a private character which competes with individual effort
and enterprise. When, therefore, a city or village wishes to
engage in such business, it must first obtain special legislative
authority therefor.
In the case of Wells v. Town of Salina (119 K Y. 280)
Earl, J., in delivering the opinion of the court, says : " Busi-
ness corporations, unless restrained by their charters, possess
the power to borrow money and issue securities therefor.
* * * But towns and other municipal corporations are
organized for governmental purposes, and their powers are
limited and defined by the statutes under which they are con-
stituted. They possess only such powers as are expressly con-
ferred or necessarily implied. They are clothed with the
power of taxation, and can thus raise all the money needed
for ordinary municipal purposes. * * * It is the general,
if not the universal, law of this country, and of England, that
municipalities are not empowered to borrow money for munici-
pal purposes unless expressly authorized to do so by stat-
ute." In the case of Smith v. City of Newburgh (77 N. Y.
130) the action was to recover $750 for rent upon a lease of
land made by the plaintiff to the city of Newburgh. The
lease was made by the city upon recommendation of water
commissioners, for the purpose of constructing thereupon a
distributing reservoir. The lease ran for the term of twenty
years. It was held that the city had no power to enter into
such a contract, and that, therefore, the lease was void ; that
where the officers of a municipality fail to pursue the strict
requirement of a statutory enactment in contracting for the
municipality, it is not bound, nor is it bound by any acts of its
officers, in ratification of such illegal contract. In the case
252 Matter of Watter Comrs. of White Plains. [Oct.,
Opinion of the Court, per Haight, J. [Vol. 176.
of Syracuse Water Company v. City of Syracuse (116 N.
T. 167) the question involved was as to whether the grant of
a franchise to the water company was to be deemed the grant
of an exclusive privilege to occupy the streets of the city with
its pipes. It was held that the grants of franchises by the
state are to be so strictly construed as to operate as a surren-
der of the sovereignty no further than is expressly declared
by the terras of the grant ; the grantee takes nothing in that
respect by inference. Bradle^ J., in delivering the opinion
of the court, says : " The municipal corporation, as such, could
bind itself by such contract only as it was authorized by statute
to make. It could not grant exclusive privileges, especially to
put mains, pipes and hydrants in its streets, nor could it law-
fully, by contract, deny to itself the right to exercise the legis-
lative powers vested in its common council." In Huron
Water Works Company v. City of Huron (30 L. R. A.
848) it was held that the power to construct a water works
system for a city is not a necessary incident of its corporation,
but must, like all its other powers, be derived directly from
the legislature of the state. (See, also, City of Petersburg
v. Applegarth, 28 Gratt. 321 ; 28 Am. Rep. 357, and Matter
of Long Island Water Supply Co., 30 Abb. [N. C] 36-44.)
It, consequently, follows that the trustees of the village of
White Plains had no power to make the contract in question,
or to carry out its provisions ; that it is not a contract which
could be enforced by or against them, and it is, therefore,
ultra vires and void. These proceedings were, as we have
seen, instituted by the board of water commissioners, pursuant
to the provisions of the statute to which we have called atten-
tion. Under the provisions of this legislation it became the
duty of the commissioners of appraisal to appraise the value
of the company's property, including its good will and fran-
chise at its full value but without enhancement from any of
the provisions of the act. The commissioners of appraisal,
instead of following these provisions of the act, have, as we
have seen from their report, refused to be governed thereby
and have instead thereof attempted to follow the provisions
1903.] People ex rel. Lewisohn v. O'Brien. 253
N. Y. Rep.] Statement of case.
of the contract. In doing this they adopted a wrong basis for
the ascertainment of the value of the company's property.
The order of the Appellate Division and that of the Special
Term confirming the report of the appraisers should be
reversed and the report of the commissioners set aside and a
new appraisal ordered before new commissioners to be
appointed by the court, with costs to abide the final award of
costs.
Parker, Ch. J., Vann and Werner, JJ., concur : Gray
and Martin, JJ., absent ; Cullen, J., dissents.
Order reversed, etc.
The People of the State of New York ex rel. Jesse
Lewisohn, Eespondent, v. William J. O'Brien, as Sheriff
of New York County, et al., Appellants.
The People of the State of New York ex rel. Jesse
Lewisohn, Eespondent, v. William E. Wyatt, as Justice
of the Court of Special Sessions of the City of New York,
Appellant
1. Constitutional Law— Witness in Any Criminal Case Not Com-
pelled to Give Any Evidence against Himself — When Determina-
tion Whether or Not Answer Will Incriminate Him Rests with
Witness — Const. Art. 1, Sec. 6. Under section six of article one of the
State Constitution, providing that no person "shall be compelled in any
criminal case to be a witness against himself," he is not obliged to answer
questions in any criminal case, either against himself or another party,
when he states that his answers might tend to incriminate him; he is pro-
tected from being compelled to disclose the circumstances of his offense
or the sources from which, or the means by which, evidence of its com-
mission, or his connection with it, may be obtained or made effectual for
his conviction, without using his answers as direct admissions against
him; and except where the court can see that his refusal to answer is
clearly a fraudulent device to protect a third party, and that the wit-
ness is in no possible danger of disclosing facts that would lead to his own
indictment and conviction, he is his own judge as to whether or not he will
answer.
2. Privilege op Witness Provided for by Section 842 of the
Penal Code Not Coextensive with That Afforded by Constitu:
tional Provision. Section 842 of the Penal Code, providing that " No
254 People ex rel. Lewisohn v. O'Brien. [Oct.,
Statement of case. [Vol. 176.
person shall be excused from giving testimony upon any investigation or
proceeding for a violation of this chapter upon the ground that such
testimony would tend to convict him of a crime; but such testimony can-
not be received against him upon any criminal investigation or proceed-
ing," is not coextensive with the constitutional provision and does not
afford the witness the protection contemplated thereby, in that it does
not prevent the use of evidence against him which may be obtained
through his testimony, but simply excludes such testimony.
3. Same. A witness produced by the prosecution before a magistrate
on an information charging the defendant with keeping a gambling house
may properly refuse to answer questions as to whether he had ever been
in the place in question, upon the ground that his answers might tend to
incriminate him, since the statute does not afford him the full protection
accorded by the constitutional provision.
People ex rel. Lewiaohn v. CTBrien, 81 App. Div. 51, affirmed.
(Argued June 4, 1903; decided October 20, 1903.)
•
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered March
10, 1903, which reversed an order of Special Term denying
the relator's petition that he be discharged from arrest on writs
of habeas corpus and certiorari and remading him to custody,
and sustained such writs and directed that the relator be
discharged.
The facts, so far as material, are stated in the opinion.
William Tr avers Jerome, District Attorney {Howard S.
Ga?is of counsel), for appellants. Prior to the decision of this
case in the court below it was settled beyond question in this
state that a witness might be compelled to testify to incrimi-
natory matter if he were guaranteed by statute that his
answers could not be introduced in evidence against him in a
subsequent criminal case. (People ex rel. v. Kelly, 24 N. Y.
74 ; Lathrop v. Clapp, 40 N. Y. 328 ; People v. Sharp, 107
N. Y. 427 ; Gilpin v. Daly, 59 Hun, 413 ; Perrme v. Striker
7 Paige, 598; People ex rel v. Hyatt, 172 N. Y. 198 ; C. C.
T. Co. v. K. R. R. Co., 154 N. Y. 495.) The decision in the
Hackley case is sound in principle and the decisions contra in
other jurisdictions proceed upon a mistaken theory of the
history and of the purpose of the constitutional provision,
1903.] People ex rel. Lewisohn v. O'Brien. 255
N. Y. Rep.] Points of counsel.
that " no person shall be compelled in any crimifial case to
be a witness against himself." (Counselman v. Hitchcock,
142 U. S. 547 ; Brown v. Walker, 161 U. S. 591 ; People
v. Sharp, 107 N. T. 427 ; People v. Gardner, 144 N. Y.
119 ; Matter of Davies, 168 K Y. 89.) The theory in Coun-
selman v. Hitchcock has been discredited by the Supreme
Court of the United States, and is contrary to the general
body of legal reasoning upon the subject. (Brown v.
Walker, 161 N. Y. 596 ; Duffy v. People, 26 N. Y. 588 ;
Matter of Tucker, 5 City II. Rec. 164 ; Matter of Jack-
son, 1 City H. Rec. 28 ; Matter of Stage, 5 City H. Kec.
177 ; Brester v. State, 26 Ala. 107 ; Murphy v. State, 63 Ala.
1 ; Bank v. State, 84 Ala. 430 ; Jones v. State, 75 Ga. 825 ;
State v. Mortimer, 20 Kan. 93.) It is established by the con-
temporaneous construction of the constitutional provision in
question that a statute such as section 342 of the Penal Code
was not considered obnoxious to its terms. (Perrine v.
Striker, 7 Paige, 593.) The decision of the court below is
subversive of the policy of this state, as evidenced by the con-
tinuous course of legislation for the past ninety years, and
creates an obstacle to the orderly administration of justice
which will inevitably lead to lawlessness and oppressive offi-
cial action. (People ex rel v. Taylor, 143 K Y. 219.) The
relator is not relieved from the obligation to answer by reason
of the fact that his answer might tend to subject him to a
penalty, since his testimony is by statute rendered unavailable
for that purpose as well as for the purpose of criminal prose-
cution in its ordinary sense. (Perrine v. Striker, 7 Paige,
598 ; Brown v. Walker, 161 U. S. 598.)
Alfred Lauterbach and P. </. liooney for respondent. The
early rule in this state adopting a rigid and narrow con-
struction of section 6 of article 1 of the Constitution is
no longer in force. (Counselman v. Hitchcock, 142 U. S.
547 ; People ex rel. v. Forbes, 143 N. Y. 219 ; Matter of
Peck v. Cargill, 167 N. Y. 391; Kellogg v. Sowerby,
32 Misc. Rep. 327 ; Matter of Leich, 31 Misc. Rep. 671 ;
256 People ex rkl. Lewisohn v. O'Brien. [Oct.,
Points of counsel. [Vol. 176.
Peoph v. Lewis, 14 Misc. Rep. 264 ; Matter of Attorney-
General, 21 Misc. Rep. 101 ; People ex rd. v. Nussbaum, 55
App. Div. 245 ; Lamson v. Boyden, 160 111. 613 ; Miskim-
ins v. Shaver, 58 Pac. Rep. 411.) The decision in the
Kelly case is unsound in principle and proceeds upon a mis-
taken theory of the history and purpose of the constitutional
provision. {Collier v. Collier, 4 Leonard, 194 ; Emery's Case,
107 Mass. 172; Burroughs v. High Com., 3 Bulst. 48.)
The decision of the United States Supreme Court in the case
of Counselmun v. Hitchcock has been expressly approved in
all of the subsequent ^decisions of that court, and has been
followed in most of tl« states of the Union, even though in
many of the states it became necessary to overrule former
decisions of their courts upon the same subject. (Broion v.
Walker, 161 U. S. 591 ; People v. Gardner, 144 N. Y. 119;
Boyd v. U. S, 116 IT. S. 616; Wilson, v. State, 51 S. W.
Rep. 916 ; Ex parte Wilson, 39 Tex. Cr. Rep. 630 ; Matter
of P. R. Coin., 32 Fed. Rep. 250 ; Matter of Comingore, 96
Fed. Rep. 562 ; United States v. N. Lead Co., 75 Fed. Rep.
94 ; United States v. Bell, 81 Fed. Rep. 836 ; Ryder v.
Bateinan, 93 Fed. Rep. 33 ; United States v. Wong Quong
Wong, 94 Fed. Rep. 833.) The constitutionality of section
342 of the Penal Code cannot be established upon the prin-
ciple of contemporaneous construction, {ffewell v. People, 7
N. Y. 9 ; People v. Alien, 42 N. Y. 378-384 ; Oakley v.
Aspinwall, 3 N. Y. 568 ; Story on Const. § 407 ; Cooley on
Const. Lim. [6th ed.] 84; People v. JV. Y. C. R. R.
Co., 24 N. Y. 485 ; Boyd v. U. S., 116 U. S. 616 ;
People ex rel. v. Forbes, 143 N. Y. 219 ; Matter of Peck v.
CargiU, 167 N. Y. 391 ; Perrine v. Striker, 7 Paige, 598.)
The decision of the court below is in accord with the public
policy of our institutions and form of government. {People
v. Allen, 42 N. Y. 378 ; Oakley v. Aspinwall, 3 N. Y. 547 ;
State v. S. H. Co., 109 Mo. 118.) The relator was justified
in declining to answer the questions asked on the ground that
his answers to the same might expose him to a penalty or
forfeiture. (2 Philips on Ev. 936 ; 1 Qreenl. on Ev. § 453 ;
1903.] People ex kel. Lkwisoiix v. O'Brien. 257
N. Y. Itej 1 Opinion of the Court, per Bautlktt, J.
2 Taylor on Ev. § 1453 ; Chase's Stephen's Digest of the Law
of Evidence [2d ed.], 294 ; 29 Am. & Eng. Ency. of Law,
836 ; Johnson v. Donaldson, IS Blatchf. 288 ; Huntington v.
Attrill, 146 U. S. 657 ; Bones v. Booth, 2 W. Bl. 1226 ;
Brandon v. Pate, 2 H. Bl. 308 ; Bead v. Stewart, 129 Mass.
407 ; Cole v. Groves, 134 Mass. 471 ; Bogers v. Becker, 131
N. T. 490 ; Henry v. Salina Bank, 1 N. Y. 83 ; Livingston
v. Tompkins, 4 Johns. Ch. 431 ; Livingston v. Harris, 3
Paige, 533.)
Babtlett, J. In December, 1902, an information was
presented to the Court of Special Sessions of the First
Division of the city of New York, charging in due form that
for the period beginning the first day of January, 1902, and
ending the first day of December, 1902, one Kichard A.
Canfield was conducting a gambling house at No. 5 East
44th street, in the city of New York, and praying that
subpoenas might issue in order that the matter be fully
inquired into upon oaths of persons attending in obedience to
such subpoenas.
Thereafter, at the request of the district attorney, the
magistrate issued a subpoena addressed to the relator herein,
requiring him to attend before him and to answer such ques-
tions as might be put to him on the information against Can-
field. The relator appeared and was duly affirmed, pursuant
to law, and after stating upon examination that he had known
the defendant Richard A. Canfield four or five years and
that he had not been in the premises No. 5 East 44th street
prior to December, 1899, was asked the following questions:
41 Q. Have you ever been in there in your life ? Have you
ever been in the premises No. 5 East 44th Street, in the City
and County of New York?" These questions the relator
refused to answer on the ground, among others, that they
might tend to criminate him.
The district attorney thereupon promised the witness
immunity, and called his attention to section 342 of the Penal
Code as affording him complete protection. The court there-
17
I
J
258 Pkople kx rel. Lkwisohn v. O'Brien. [Oct.,
Opinion of the Court, per Bartlett, J. [Vol. 176.
upon directed the witness to answer, and the latter said, " I
respectfully decline, judge." Thereupon a complaint was
made by a deputy assistant district attorney, duly setting forth
the facte, and thereon and on certain exhibits annexed, the
magistrate issued a warrant for the arrest of the relator,
charging him with a criminal contempt of court. The war-
rant was thereupon delivered to the appellant Gannon, a
peace officer, who arrested the relator.
After various proceedings unnecessary at this time to consider
in detail, Gannon, the peace officer, was served with a writ
of habeas corpus, commanding him to bring the relator before
Justice Scott of the Supreme Court, and a writ of certiorari
was also obtained directed to Justice Wyatt of the Special
Sessions. Upon the hearing of the issues an order was made
dismissing the writs and remanding the relator to the custody
from which he was taken. Upon appeal the Appellate
Division reversed this order with a divided court.
The relator seeks to justify his refusal to answer under
article one, section six, of the Constitution of this state, which
provides that no person " shall be compelled, in any criminal
case, to be a witness against himself."
It is insisted on behalf of the People that the witness is
fully protected by section 342 of the Penal Code, and should
have been compelled to answer. The section reads as follows :
" No person shall be excused from giving testimony upon any
investigation or proceeding for a violation of this chapter,
upon the ground that such testimony would tend to convict
him of a crime ; but such testimony cannot be received
against him upon any criminal investigation or proceeding."
The relator contends that this section does not afford him
full protection, and is not as broad in its provisions as the Con-
stitution. This constitutional provision is precisely the same
in phraseology as the fifth amendment of the Constitution of
the United States. The same language is also found, in sub-
stance, in many of the State Constitutions.
Early in the history of this court, in People ex rel. Hachley
v. Kelly (24 N. Y. 74), this provision of the State Constitution
1903.] People ex rel. Lkwisohx v. O'Brien. 259
N. Y. Rep.] Opinion of the Court, per Baktlett, J.
was construed, the court holding that it did not protect a wit-
ness in a criminal prosecution against another person from being
compelled to give testimony which implicates him in a crime,
when he has been protected by statute against the use of such
testimony on his own trial. Judge Denio said (pp. 82, 83):
" It is perfectly well settled that where there is no legal pro-
vision to protect the witness against the reading of the testi-
mony on his own trial, he cannot be compelled to answer.
(People v. Mat/ier, 4 Wend. 229, and cases there referred
to.) This course of adjudication does not result from any
judicial construction of the constitution, but is a branch of
the common-law doctrine which excuses a person from giving
testimony which will tend to disgrace him, to charge him
with a penalty or forfeiture, or to convict him of a crime.
It is of course competent for the legislature to change any doc-
trine of the common law, but, I think, they could not compel
a witness to testify on the trial of another person to facts
which would prove himself guilty of a crime without indem-
nifying him against the consequences, because, I think, as has
been mentioned, that, by legal construction, the constitution
would be found to forbid it. Bnt it is proposed by the
appellant's counsel to push the construction of the constitu-
tion a step further. A person is not only compellable to be
a witness against himself in his own cause, or to testify to the
truth in a prosecution against another person, where the evi-
dence given, if used as his admission, might tend to convict
himself if he should be afterwards prosecuted, but he is still
privileged from answering, though he is secured from his
answers being repeated to his prejudice on another trial
against himself. It is no doubt true that a precise account of
the circumstances of a given crime would afford a prosecutor
some facilities for fastening the guilt upon the actual offender,
though he were not permitted to prove such account upon
the trial. The possession of the circumstances might point
out to him sources of evidence which he would otherwise be
ignorant of, and in this way the witness might be prejudiced.
But neither the law nor the constitution is so sedulous to
260 People ex bel. Lfiwisomr v. O'Brien. [Oct.,
Opinion of the Court, per Bartlett, J. [Vol. 176.
screen the guilty as the argument supposes. If a man cannot
give evidence upon the trial of another person without dis-
closing circumstances which will make his own guilt apparent,
or at least capable of proof, though his account of the trans-
actions should never be used as evidence, it is the misfortune
of his condition and not any want of humanity in the law."
TVe thus have a clear interpretation of the constitutional
provision which reads that " no person can be compelled, in
any criminal case, to be a witness against himself," as follows :
That the words " any criminal case " mean a criminal case
against the witness ; that the prohibition, " no person can be
compelled * * * to be a witness against himself," is fully
satisfied when the evidence of a witness taken on the trial of
another person is held to be inadmissible on his own criminal
prosecution ; the fact that his evidence on the trial of another
person may afford the public prosecutor some facilities for
fastening the guilt upon himself does not permit him to be
silent.
It is clear, if this case is to be regarded as containing a cor-
rect exposition of the constitutional provision under review,
that the relator should have been required to answer the ques-
tions propounded to him, as his protection, alike under the
Constitution and the statute, is confined to the single pro-
vision that his evidence cannot be received against him in any
criminal investigation or proceeding.
The opinion in People ex rel. Ilackley v. KeUy (supra) was
written by a distinguished jurist, whose learning and ability
have placed him among the great judges of this state who
now rest from their labors.
It is with no little hesitation that this court feels con-
strained to adopt a less technical and more liberal interpreta-
tion of this brief provision of the Constitution.
As we have already pointed out, the fifth amendment to
the Constitution of the United States contains the precise lan-
guage of ourState Constitution now under review.
In Brawn v. Walker (161 IT. S. 591, 606) the Supreme
Court of the United States said :
1903.] People ex rel. Lewisohn v. O'Brien. 261
N. Y. Rep. J Opinion of the Court, per Bartlett. J.
" It is true that the Fifth Amendment to the Constitution
of the United States does not operate upon a witness testify-
ing in the state courts, as the first eight amendments to the
Constitution of the United States are limitations only upon
the powers of Congress and the Federal courts, and are not
applicable to the several states, except so far as the Fourteenth
Amendment may have made them applicable. (Barron v.
Baltimore, 7 Peters, 243 ; Fox v. Ohio, 5 How. [U. S.] 410 ;
Withers v. Buckley, 20 How. [U. S.] 84 ; Twitchell v. Com-
monwealth, 7 Wall. 321; Presser v. Illinois, 116 U. S.
252.)"
It, therefore, follows that while the case to which we are
about to refer, of Counselman v. Hitchcock (142 U. S. 547),
may not be binding as an authority upon this court, yet its
reasoning is most persuasive and has been followed in several
states of the Union whose Constitutions contain a similar pro-
vision to the one under consideration. {Smith v. Smith, 116
K C. 386 ; Ex parte Cohen, 104 Cal. 524 ; Ex parte
Arnot Carter, 166 Mo. 604 ; Miskimins v. Shaver, 58 Pac.
Repr. [Wyo.] 411. See, also, Emery's Case, 107 Mass.
172.)
In Counselman v. Hitchcock (supra) it was held that where
a person was under examination before a grand jury, in an
investigation into certain alleged violations of the Interstate
Commerce Act, he is not obliged to answer questions where
he states that his answers might tend to criminate him,
although section 860 of the United States Revised Statutes
provides that no evidence given by him shall be in any manner
used against him, in any court of the United States, in any
criminal proceeding. The case before the grand jury was a
criminal case. The meaning of the constitutional provision is
not merely that a person shall not be compelled to be a wit-
ness against himself in a criminal prosecution against himself,
but its object is to insure that a person shall not be compelled,
when acting as a witness in any investigation, to give testi-
mony which may tend to show that he himself has committed
a crime.
262 People ex rel. Lewisohn v. O'Brien. [Oct.,
Opinion of the Court, per Bartlbtt. J. [Vol. 176.
Mr. Justice Blatohford, writing for the court, said (p. 562) :
" It is broadly contended on the part of the appellee that a
witness is not entitled to plead the privilege of silence except
in a criminal case against himself, but such is not the language
of the Constitution. Its provision is that no person shall be
compelled in any criminal case to be a witness against him-
self. This provision must have a broad construction in favor
of the right which it was intended to secure. The matter
under investigation by the grand jury in this case was a
criminal matter, to inquire whether there had been a criminal
violation of the Interstate Commerce Act. If Counselman
had been guilty of the matters inquired of in the questions
which he refused to answer, he himself was liable to criminal
prosecution under the act. The case before the grand jury
was, therefore, a criminal case. The reason given by Counsel-
man for his refusal to answer the questions was that his
answers might tend to criminate him, and showed that his
apprehension was that, if he answered the questions truly and
fully (as he was bound to do if he should answer them at all),
the answers might show that he had committed a crime against
the Interstate Commerce Act, for which he might be prose-
cuted. His answers, therefore, would be testimony against
himself, and he would be compelled to give them in a criminal
case. It is impossible that the meaning of the constitutional
provision can only be that a person shall not be compelled to
be a witness against himself in a criminal proceeding against
himself. It would doubtless cover such cases, but it is not
limited to them. The object was to insure that a person
should not be compelled, when acting as a witness in any
investigation, to give testimony which might tend to show that
lie himself had committed a crime."
At page 564 the learned judge continues : " It remains to
consider whether section 860 of the Revised Statutes removes
the protection of the constitutional privilege of Counselman.
That section must be construed as declaring that no evidence
obtained from a witness by means of a judicial proceeding
shall be given in evidence or in any manner used against him
1903.] People ex kel. Lewisohn v. O'Brien. 263
N. Y. Hep.] Opinion of the Court, per Bartlett, J.
or bis property or estate in any court of the United States in
any criminal proceeding or for the enforcement of any penalty
or forfeiture. It follows that any evidence which might have
been obtained from Counsclman by means of his examination
before the grand jury could not be given in evidence or used
against him or his property in any court of the United States
in any criminal proceeding or for the enforcement of any
penalty or forfeiture. This, of course, protected himself
against the use of his testimony against him or his property in
any prosecution against him or his property in any criminal
proceeding in a court of the United States. But it had only
that effect. It could not, and would not, prevent the use of
his testimony to search out other testimony to be used in evi-
dence against him or his property in a criminal proceeding in
such court. It could not prevent the obtaining and the use
of witnesses and evidence which should be attributable directly
to the testimony he might give under compulsion and on
which he might be convicted, when otherwise, and if he
had refused to answer he could not possibly have been
convicted."
The court thereupon held that section 860 of the United
States Revised Statutes is not co-extensive with the constitu-
tional provision, and that it was a reasonable construction of
the provision that the witness is protected from being com-
pelled to disclose the circumstances of his offense or the
sources from which or the means by which evidence of its
commission or of his connection with it may be obtained or
made effectual for his conviction without using his answers as
direct admissions against him.
Judge Blatchfobd stated that the court could not yield
assent to the views expressed by the Court of Appeals of New
York in People ex rel. Hackley v. Kelly {supra).
We are of opinion that the construction given to the very
clear and plain words of the Constitution in Counsdrnan v.
Hitchcock is reasonable, fair and accords a witness only such
protection as the plain letter of the Constitution confers.
If this is not the proper construction the witness might be
264 People ex rel. Lewisohn v. O'Brien. [Oct,
Opinion of the Court, per Bajitlett, J. [Vol. 176.
required to disclose circumstances that would enable the
public prosecutor to institute criminal proceedings against him
wherein he might be convicted without reading his evidence
taken in another case.
The language of Chief Justice Marshall in the Circuit
Court of the United States for the District of Virginia (June,
1807), in Burr's Trial (1 Burr's Trial, 244), on the question
whether the witness was privileged not to accuse himself, is as
follows : " If the question be of such a description that an
answer to it may or may not criminate the witness according
to the purport of that answer it must rest with himself, who
alone can tell what it should be, to answer the question or not.
If in such a case he may say upon his oath that his answer
would criminate himself the court can demand no testimony
of the fact. * * * According to their statement (the
counsel for the United States) a witness can never refuse to
answer any question, unless that answer, unconnected with
other testimony, would be sufficient to convict him of crime.
This would be rendering the rule almost perfectly worthless.
Many links frequently compose that chain of testimony which
is necessary to convict any individual of a crime. It appears
to the court to be the true sense of the rule that no witness is
compellable to furnish any one of them against himself. It is
certainly not only a possible, but a probable case, that a wit-
ness by disclosing a single fact may complete the testimony
against himself, and to every effectual purpose accuse himself
as entirely as he would by stating every circumstance which
would be required for his conviction. That fact of itself
might be unavailing, but all other facts without it would be
insufficient. While that remains concealed within his own
bosom he is safe, but draw it from thence and he is exposed
to a prosecution. The rule which declares that no man is
compellable to accuse himself would most obviously be
infringed by compelling a witness to disclose a fact of this
description. What testimony may be possessed, or is obtain-
able, against any individual, the court can never know. It
would seem, then, that the court ought never to compel a wit-
1903.] People ex rel. Lewisohn v. O'Brien. 265
N. Y. Rep.] Opinion of the Court, per Bartlett, J.
ness to give an answer which discloses a fact that would form
a necessary and essential part of a crime which is punishable
by the laws."
A clearer and more cogent statement of the rule it would
be difficult to find.
It is insisted by the counsel for the respondent that People
ex rel. Hockley v. Kelly was overruled in People ex rel. Taylor
r. Forbes (143 N. Y. 219). In that case there was no statute
protecting the witness in the use of his testimony, and he
having refused to answer, on the ground that to do so would
tend to criminate him, this court held that the witness was
. in such a case the judge of the effect of answers sought to
be drawn from him, and that nothing short of absolute
immunity from prosecution could take the place of the con-
stitutional privilege.
It is true that there are many expressions in the opinion of
the court indicating its tendency to depart from the strict rule
laid down in People ex rel. Hockley v. Kelly, but the case is
not precisely in point.
The respondent also cites Matter of Peck v. Cargill
(167 N. Y. 391) as sustaining his contention that People ex
rel. Hockley v. Kelly can be no longer regarded as authority.
It is sufficient to say of the case cited thai the point now
under consideration was not directly presented, but in the
opinion Counselman v. Hitchcock is cited with approval as
sustaining the failure of the holder of a liquor tax certificate
to file a verified answer in proceedings under the Liquor Tax
Law.
It is true in this case, as in the one last cited, that the
general language of the opinion indicates the tendency of the
court to depart from the rule laid down in People ex rel. Hack-
ley v. Kelly.
The learned assistant district attorney insists that while the
case of Counselman v. Hitchcock has never been actually
overruled, the court has refused to extend the principle, and
has repudiated entirely the reasoning on which it was founded.
In support of this contention Brown v. Walker (161 XL S.
266 People ex rel. Lewisohn v. O'Brien. [Oct.,
Opinion of the Court, per Bartlbtt, J. [Vol. 176.
591) is cited. That case involved the construction of the act
of 1893 in reference to producing books, papers, etc., before
the interstate commerce commission. The court pointed
out that this act was passed in view of the opinion of the
court in Counselman v. Hitchcock, to the effect that section
860 of the United States Revised Statutes was not co-extensive
with the constitutional provision. The court held in sub-
stance that the statute of 1893 was co-extensive with the
Constitution in the immunity that it offered the witness, and
that he was deprived of his constitutional right thereby and
must answer the question.
The statement by way of criticism of Counselman v. Hitch-
cock is as follows (p. 600) : " The danger of extending the
principle announced in Counselman v. Hitchcock is that the
privilege may be put forward for a sentimental reason, or for
a purely fanciful protection of the witness against an imagi-
nary danger^ and for the real purpose of securing immunity
to some third person, who is interested in concealing the facts
to which he would testify. Every good citizen is bound to
aid in the enforcement of the law, and has no right to permit
himself, under the pretext of shielding his own good name,
to be made the tool of others, who are desirous of seeking
shelter behind his privilege."
It is doubtless true that cases may arise where the mere
fact of the witness asserting that to answer the question would
tend to criminate him would not be conclusive. Where the
court can see that the refusal to answer is a mere device to
protect a third party, and that the witness is in no possible
danger of disclosing facts that would lead to his own indict-
ment and conviction, an answer may be insisted upon.
The decision in Brown v. Walker (supra) in no way
militates against the construction of the Constitution in
Counselman v. Hitchcock. It merely argues that the rule
might be used for improper purposes and to shield the guilty.
Any general rule is subject to abuse, and the court will be
always vigilant to 6ee that it is not employed in the inter-
ests of fraud and to secure a failure of justice. It is clear
1903.] People ex rel. Lewisohn v. O'Brien. 267
N. Y. Rep.] Opinion of the Court, per Bartlett, J.
that in Counselman v. Hitchcock the rule was properly
applied, and we accord to that decision our full approval.
This distinction is to bo kept in mind as to the attitude of
a witness before the court where complete statutory protec-
tion, co-extensive with the constitutional provision, exists, and
where it is lacking.
In the former situation the witness is deprived of his con-
stitutional right of refusing to answer.
The point was decided by this court in People v. Sharp
(107 N. Y. 427), and by the Supreme Court of the United
States in Brown v. Walker (161 U. S. 591). We adhere to
the point thus decided.
In the latter situation, where statutory immunity does not
exist, which was dealt with by Chief Justice Marshall in
language already quoted (1 Burr's Trial, 244), it rests with
the witness whether he will answer or not, except, ag we have
pointed out, where the refusal is clearly a fraudulent device
to protect a third party.
In thus extending the rule, as hitherto laid down by this
court, we are persuaded that the complete immunity sought
to be afforded the citizen by the Constitution from being a
witness against himself in any criminal case is fully secured.
The evolution of this right has been slow, indeed, since the
days of the Star Chamber in England, when defendants, on a
refusal to be sworn against themselves, were whipped at the
cart's tail and pilloried ; had ears cut off and noses slit ; were
lined enormous sums and imprisoned for years.
The methods of the seventeenth century were long since
abandoned, but the desire to elicit from a suspected or accused
person evidence that would send him to the cell or the scaffold
unfortunately survives, and this court has, in recent years,
been called upon to condemn on several occasions modes of
procedure having that end in view.
In the case at bar, in view of the principles of law dis-
cussed, the relator was justified in refusing to answer the
questions propounded to him, on the ground that the answers
would tend to criminate him.
268 People ex rel. Lewisohn t\ O'Brien. [Oct.,
Opinion per Gray, J. [Vol. 176.
It is quite impossible for the court to say to what extent
the witness, if he answered, would be criminated or placed in
jeopardy. %He might be subjected to proceedings involving
penalty or forfeiture ; he might be tried and convicted as a
common gambler, which is declared by statute to be a felony.
All this might be accomplished without using his evidence
against him, if given herein.
We assume, as did the Appellate Division, that it is not
contended by the prosecution that the questions which the
relator refused to answer were preliminary in character, but
rather that it is conceded by both parties that they are so
framed as to call for a decision on the merits.
The order appealed from should be affirmed, with costs, the
writs sustained and the relator discharged.
Gray, J. What hesitation I have, in agreeing to an affirm-
ance, is because the effect of our decision will be to change a rule
of construction, which was early laid down in this state in People
ex rel. Hackley v. Kelly, and to overrule the authority of
that case. I find no decision of this court which has gone
that far. But the rule of that case, being one of evidence, or
of procedure, may be changed, and should be changed, if not
consistent with the enjoyment of the full measure of the citi-
zen's constitutional rights. It is my judgment that the rea-
soning of the opinion of the United States Supreme Court in
Counselman v. Hitchcock is more convincing, in giving a con-
struction to the language of the constitutional clause, than is
that of this court, as expressed in its opinion in the Hackley
case. I, therefore, am willing to place this court in accord
with the later expressed views of the federal tribunal. I think
that the words " in any criminal case," which are used in the
constitutional clause, are entitled, when we consider the mov-
ing principle for its incorporation into the fundamental law of
the state, to a broader construction than was accorded to them
in the Hackley case.
If the interests of the People are deemed to require it, it is,
of course, quite competent, and proper, for the legislative
1903.] City of New York v. Baird. 269
N. Y. Rep] Statement of case.
body to provide for an exemption of the witness from liability
to prosecution, as broad in its effect as is the constitutional
privilege.
Parker, Ch: J., O'Brien, Haight, Cullen and Werner,
J J. (and Gray, J., in memorandum), concur with Bartlett, J.
Order affirmed.
The City of New York, Respondent, v. William P. Baird
et al., Appellants.
Principal and Surety — Impairment of Indemnitors' Rights —
Question of Fact. In an action upon a bond given to the city of New
York as a substitute for moneys retained by the comptroller under a con-
tract for laying water mains, to meet claims for damages which might
arise from the negligence of the contractor, it appeared that a judgment
based upon his negligence had been obtained against the city and the con-
tractor;'that both appealed; that thereafter the city, against his protest,
settled by paying less than the amount of the judgment, but left it intact
as to him, of all of which the surety had no notice, nor was it given an
opportunity to say whether it would further indemnify the city on the
condition that it would either prosecute the appeal or permit the surety
to do so; that the reason given for the city's action was that while coun-
sel believed there might be a reversal, he believed there would be another
recovery in as great if not greater amount, and he deemed it wise to
secure a reduction as the bond secured less than half of the amount of
the judgment. It also appeared that after the settlement the city brought
an action on a bond executed by the contractor at the time of the contract
and conditioned for its faithful performance in which it sought to recover
the full amount paid in settlement of the judgment, which action was still
pending. Held, that it was a question of fact, 1, whether or not the set-
tlement was made in bad faith. 2. If so made, did it operate to the injury
of the principal and surety? If made in bad faith with the intention of
injuring the principal and surety, the plaintiff cannot recover unless it
shows that its action did not operate to the disadvantage of either, or if it did
to some extent, that, after deducting the amount of damage done to them,
there still remained something due on the bond. A judgment of the Appel-
late Division, therefore, which reverses an order setting aside a verdict
directed in plaintiff's favor and restores the original judgment entered
thereon must be reversed and a new trial granted in order that the defend-
ants may have an opportunity of presenting these questions to a jury.
City of New York v. Baird, 74 App. Div. 238, reversed.
(Argued June 18, 1903; decided October 20, 1903.)
270 City of New York v. Bairo. [Oct.,
Points of counsel. [Vol. 176.
Appeal from a judgment, entered August 5, 1902, upon
an order of the Appellate Division of the Supreme Court in
the first judicial department, which reversed an order of the
court at a Trial Term setting aside a verdict in favor of plain-
tiff and granting a new trial, and directed judgment for plain-
tiff upon the verdict.
The nature of the action and the facts, so far as material,
are stated in the opinion.
J. Woolsey Shepard and Joseph McElroy, Jr., for appel-
lants. The stipulation to pay and satisfy any judgment con-
tained in the condition of the bond of indemnity means (1)
a valid judgment and (2) a final judgment in the Court of
Appeals, and is not restricted to a judgment of the trial court.
( WJieeler v. Sweet, 137 N. Y. 435 ; Foo Long v. A. S. Co.,
146 N. Y. 251 ; Aesc/dimann v. Presbyterian Hospital, 165
N. Y. 296 ; Kirby v. D. cfe 77. C. Co., 90 Hun, 5S8 ; Roberts
v. Johnson, 58 K Y. 613 ; Kane v. Smith, 80 N. Y. 458 ;
Beal v. Finch, 11 N. Y. 128; Robinson v. Plimpton, 25
K Y. 484 ; Travers v. Nichols, 7 Wend. 434.) The right of
appeal is a constitutional right which cannot be waived
except by express stipulation and in unambiguous terms.
The stipulation in the condition of the bond given by Baird
and the surety company contains no such waiver and its terms
cannot be so construed. (Stedeker v. Bernard, 93 N. Y. 5S9.)
If there was a breach in the condition of the bond immediately
upon the entry of the Kelly judgment, and an accrual of lia-
bility in favor of respondent against appellants, the breach
was waived by the taking of an appeal by respondent and the
liability of appellants was postponed and the contract of
indemnity modified to such extent until the determination of
said appeal. {Toplitz v. Bauer, 161 N". Y. 325 ; Thompson
v. Poor, 147 N. Y. 402 ; Gray v. Green, 9 Hun, 334 ; Dodge
v. Zimmer, 110 N. Y. 43; Nicoll v. Sands, 131 N. Y. 19;
Woolsey v.Funke, 121 K Y. 87; Sattler v. Ilallock, 160 K
Y. 291 ; G. F P. C Co. v. T Ins. Co., 162 N. Y. 399.)
The intention of Baird and the surety company, when the
1903.] City of New York v. Baird. 271
N. Y. Rep.] Points <^ counsel.
bond was given, determines the extent of their obligation and
is to be ascertained from the meaning of the language used in
the bond itself, read in the light of the circumstances sur-
rounding its execution. (U. C. S. Inst. v. Young, 161 N. Y.
23 ; Nat. M. B. Assn. v. ConUing, 90 N. Y. 116 ; Smith v.
Molleson, 148 N. Y. 241 ; TUden v. Tilden, 8 App. Div.
99 ; Griffiths v. Hardenbergh, 41 N. Y. 464 ; White's Bank
v. Myles, 73 N. Y. 336; French v. Carhart, 1 N. Y.
102 ; Coleman v. Beach, 97 N. Y. 545 ; Bennett v. Edison,
26 App. Div. 363 ; Blossom v. 6>(^n» 13 N. Y. 569.)
The contract of Bairjl and the surety company with the city
of New York, as embodied in the bond, is one of suretyship,
and is to be interpreted by the ordinary rules of construction
governing such contracts, namely, strictly in accordance with
its terms. The compromise of the Kelly judgment by the
city, without notice to the surety company, and against the
protest of the defendant Baird, so altered and changed their
position and so affected and prejudiced their legal rights and
status as to constitute a breach of the contract on the part of
the city of New York and to release the surety company and
Baird from their liability on the bond. {Page v. Kreky, 137
N. Y. 307; Smith v. Molleson, 148 N. Y. 241; Phelps v.
Borland, 103 N. Y. 406; J. C Bank v. Streader, 106 N. Y.
18(5 ; Lynch v. Reynolds, 16 Johns. 41 ; Brown v. Williams,
4 Wend. 360; Wheeler v. Sweet, 137 N. Y. 435; Acer v.
Uotchkiss, 97 N. Y. 396 ; Foo Long v. A. S. Co., 146 N. Y.
254 ; Ballman v. A. S. Co., 104 Fed. Eepr. 634.) Respondent
was entitled on the trial to have the question submitted to the
jury, whether the settlement and compromise made by the
city was made in good faith and whether same was not a con*
structive fraud on the rights of respondent. (Foo Long v.
A. S. Co., 146 N. Y. 251 ; Wheeler v. Sweet, 137 N. Y. 435 ;
A. S. Co. v. Ballman, 104 Fed. Repr. 634 ; Easton v. Lyman,
26 Wis. 61; Stark v. Fuller, 42 Penn. St. 320; Knapp v.
Smith, 27 N. Y. 277; Wakeman v. Daily, 44 Barb. 498;
51 N. Y. 27 : Aeschlimann v. Presby. Hospital, 165 N. Y.
296.)
272 City of New York v. Baird. [Oct.,
Opinion of the Court; per Parker, Ch. J. [Vol. 176.
George L. Hives, Corporation Counsel {Tlveodore Connoly
and Terence Farley of counsel), for respondent. By the express
terms of the bond the defendants were in default upon the
entry of the judgment obtained by Thomas Kelly against the
plaintiff. It makes no difference, therefore, so far as their
liability is concerned, whether or not the plaintiff appealed or
settled said judgment without their consent. (Conner v.
Reeves, 103 N. Y. 527; M. S. Bank v. Thomson, 58 Minn.
346 ; Brown & Haywood Co, v. Legon, 92 Fed. Repr. 851 ;
ChaUoner v. Walker, 1 Burr. 574 ; Sparkes v. Maytindale,
8 East, 593; Hancock v. Clay, 2 Stark. 100; Wheeler v.
Sweet, 137 N. Y. 435 ; Given v. Driggs, 1 Caines, 450 ; Zee
v. Clark, 1 Hill, 56 ; Creamer v. Stephenson, 15 Md. 211.)
The fact that there is an indemity bond attached to the con-
tract does not affect the question of the liability of the defend-
ants. (A. S. Co. v. Thurber, 121 N. Y. 655 ; Sachs v. Am.
Surety Co., 72 App. Div. 60; U. C. S. Inst. v. Young, 161
N. Y.23.)
Parker, Ch. J. The recovery is on a bond given by defend-
ants as principal and surety conditioned for the payment and
satisfaction of any judgment which may be obtained in an
action brought by one Kelly against the city of New York.
Defendants insist that the recovery ought not to stand
because (1) as to defendant Baird the city, without right,
made a settlement with Kelly and caused the judgment to be
satisfied as to it against the protest of Baird, who insisted that
an appeal taken by the city and himself was well taken, and
should be prosecuted to the end ; and (2) as to the surety com-
pany, that it was entitled to notice of the settlement and the
consequent opportunity to take the city's place and prosecute
the appeal.
The execution and delivery of the bond upon which this
action is founded was induced by these circumstances : Baird
had a contract with the city of New York for laying water
mains, one of the provisions of which was that he would
indemnify and save harmless the city of New York against
1903.] City of New York v. Baird. 273
N. Y. Rep.] Opinion of the Court, per Parker, Ch. J.
and from all suits and actions and all costs and damages to
which the city might be put for, or on account of any injury,
or alleged injury, to the person or property of another result-
ing from negligence in the performance of the work or in
guarding the same. During the progress of the work Kelly,
a member of the fire department, drove his engine into some
part of the excavation. It was in the night time and he
claimed there were no lights to warn him of the danger. His
injuries were very serious and very promptly he commenced
an action against the contractor, Baird, and the city of New
York, the liability of the latter resting upon its duty to keep
the public highway in a safe condition for travel while the work
was in progress, and its failure to guard the street and ditch.
{Denting v. Terminal Iiy. of Buffalo, 16U X. Y. 1.) Before
that action came on for trial Baird, having completed his con-
tract, sought to obtain from the comptroller the balance of the
contract price, which exceeded the sum of $25,000. But the
comptroller claiming, as he lawfully might, that the provisions
in the contract to which brief reference has been made enured
to the benefit of the city, and entitled it to retain sufficient of
the moneys due the contractor to indemnify it against any
claim made against it by reason of the contractor's negligence
{Mansfield v. Mayor, etc., of N. Y., 165 N. Y. 208), refused
to pay over such balance. Negotiations on this subject resulted
in a consent by the municipal authorities to accept a bond with
a surety company as surety for $10,000 conditioned, as has
already been noted, for the payment of any judgment to be
obtained in the action, up&n the giving of which the municipal
authorities paid over the $25,000 to Baird.
The trial of Kelly's action, however, disclosed that the jury
took a very different view of the extent of the injuries
received by Kelly from that taken by Baird and the represen-
tatives of the municipality, for their verdict exceeded $22,000.
After the entry of judgment an appeal was taken by Baird
and the city. Some months later, and while the appeals were
pending undisposed of, the city made a settlement with Kelly
by which it secured a reduction of the judgment as against it
IS
274 City of New York v. Baird. [Oct.,
Opinion of the Court, per Parker, Cu. J. [Vol. 176.
by something more than $5,000. The city having paid $7,500
in excess of the amount secured by the bond then brought
this action.
Baird and his surety insist that the city having taken an
appeal was bound to prosecute it to the end, although the
result to the city might be a very substantial loss, while the
view of the city authorities seems to be that the city owed no
duty whatever either to the principal or his surety in the
bond and, therefore, could accept as final any judgment
rendered in that action no matter how excessive the damages
or how many the substantial errors of law committed by the
trial court. But the view-point of each is partial and quite
too narrow we think, and for that reason, doubtless, is
unsupported by authority.
In Conner v. Reeves (103 N. Y. 527) the question was
neither presented by the record nor discussed by the counsel
or the court whether an indemnity can be availed of by one
depriving the indemnitor of such rights of appeal as the
statute undertakes to secure to all litigants. Nor was such a
question presented in Wheeler v. Sweet (137 X. Y. 4:35)*
although a very interesting question was decided, namely, that
while a judgment against a sheriff obtained in due course
ordinarily fixes the liability of the indemnitors, although not
parties and without notice of the action, at the same time good
faith requires the sheriff, if requested, to give the indemnitors
an opportunity to present a defense, and if this is refused, or
prevented by his act, he may not say that the indemnitors
have not been injured or that the judgment determines their
liability. The proposition decided was no more to be found
in that bond than in this one, but it was read into it by the
court, and furnished a precedent of which many more could
be found for a like reading in this case if justice will be
thereby promoted.
The excuse offered by the city authorities for changing
their position after taking an appeal is that Kelly's counsel
came to them with an offer of compromise, and while the
learned assistant corporation counsel was of the opinion that a
1903.] City of New York v. Baird. 275
N. Y. Rep.] Opinion of the Court, per Parker, Ch. J.
reversal would quite likely result from the appeal, his view
was that the reversal would be on technical grounds which
would not at all stand in the way of a submission of the case
to a jury on a new trial, and it was his judgment that as large
and possibly a larger verdict would result Therefore, he
deemed it his duty in behalf of the city to secure a settlement
which would reduce the amount to be paid as much as possible,
and he secured a settlement by the terms of which the city paid
something like $5,000 less than the amount of the judgment
against it.
This $5,000 reduction did not, however, benefit Baird.
The city took care of itself and let Baird go, although the
record tends to show that not only did the city have this
$10,000 bond, but it also had a bond given by Baird when he
entered into the contract, which covenanted for faithful per-
formance of all the conditions of the contract, and against the
sureties upon that bond it seems the city has also proceeded.
If that bond is good — and the record contains no hint to the
contrary — the reason assigned by counsel for securing a reduc-
tion of the judgment so far as the city is concerned seems inade-
quate and it becomes very difficult, therefore, to understand why
it was insisted that the city should settle against the protest of
Baird, who asserted persistently his anxiety to have the judg-
ment reviewed by the appellate court. Baird's counsel says
under oath that he protested against it with all possible vigor,
and in that respect he is not contradicted by the assistant cor-
poration counsel, who seems to have been equally determined
that so far as the city was concerned the judgment should be
compromised.
We have then a situation where after consultation between
the counsel for Baird and the representative of the corporation
counsel an appeal was taken to the Appellate Division by the
city and Baird, and steps taken toward making a case ; but
before it was possible for it to be argued the municipal
authorities changed their position and settled the judgment.
It would be strange indeed if as a result of such action the
city of New York could recover on the bond should the con-
276 Citv of New York v. Baird. [Oct.,
Opiuion of the Court, per Parker, Ch. J. [Vol. 176.
tinuance of the appeal by Baird result in a reversal of the,
judgment without possibility of a recovery against him on a
new trial. And on the other hand it would equally offend
against justice to deprive the municipality of the benefit of
the wisdom of its officers should it happen that they were wise
in concluding either that the judgment would not be reversed
or, if reversed, that it would be for technical reasons, with the
result that the subsequent verdict wrould be for an equal or
greater amount.
Our conclusion is that — reading this bond, as we should,
in the light of the circumstances surrounding its execution,
and the contract under which the money was being held by
the comptroller, for which this bond was to become a substi-
tute, for the protection of the city — the city could not
deprive the principal and his sureties of his right of review
without taking the chances of loss should such review and a
subsequent trial had by reason of it result favorably to the
principal ; that midway between the two extremes claimed by
plaintiff and defendants lies the true position, and the test of
it is, Was the action of the municipal authorities complained
of taken in bad faith ? If so, did it operate to the substantial
injury of Baird and the surety? If the first question be
answered in the affirmative then the party indemnified cannot
recover unless it shows that its action — found by the jury to
have been taken in bad faith with the intention of injuring
the principal or surety — did not operate to the disadvan-
tage of either, or if it did to 6ome extent, that after deduct-
ing the amount of damage done to them there still remained
something due on the bond.
The defendants asked to go to the jury upon a number of
questions, among others as to whether the settlement of the
suit of Kelly v. Mayor, was or was not made in bad faith
and collusively and without respecting the rights of the
indemnitors. The court denied defendants' application and
directed a verdict in favor of plaintiff, which he afterwards
set aside. The judgment of the Appellate Division sets aside
the order of vacatur and restores the original judgment, thus
1903.] City of New York v. Baird. 277
N. Y. Rep.] Opinion of the Court, per Parkek, Ch, J.
depriving defendants of the opportunity of having the ques-
tion of good faith and fair dealing on the part of the munici-
pal authorities passed upon, and if this be error then tbia
court should reverse the Appellate Division that defendants,
may have a chance to ask a jury to pass upon this question
of fact.
And it is error if there was evidence sufficient to make it a
question for the jury, and it seems to us that there is no room
for doubt on that subject.
When this defendant company was invited to become surety
on Baird's bond, the action of Kelly against the city was pend-
ing, and the municipal authorities, as well as Baird and the
surety company, well knew that if a substantial judgment
should be obtained by the plaintiff there would be an appeal.
Upon the trial the learned assistant to the corporation counse1
took part, and after the trial had a consultation with the
counsel for Baird, during which he denounced the verdict as
outrageous, and expressed the opinion, as he admits, that a
new trial could probably be obtained. He served a notice of
appeal and ordered the stenographer's minutes, after which
he entertained the overtures for a settlement made by plain-
tiff's counsel, and insisted that Baird should join with him,
and when Baird's counsel said his client would not do it, but
would " fight to the finish," the city settled by paying $5,000
less than the judgment, but left the judgment intact as against
Baird. And of all this the surety was not advised, and it was
not given an opportunity to say whether it would further
indemnify the city on the condition that the city would either
prosecute the appeal or permit the surety to do so. And the
only excuse suggested for its action is that, while counsel
thought that there might be a reversal, he believed there
would be another recovery in as great and, perhaps, greater
amount, and, therefore, he deemed it wise for the city to
secure a reduction of $5,000, inasmuch as the bond of defend-
ants amounted to but $10,000. But after this settlement the
city brought an action on the bond executed at the time of
the making of the contract, and conditioned for the faithful
278 * People v. Tobin. [Oct.,
Statement of case. [Vol. 176.
performance of all its covenants, in which it sought to recover
the full amount of $17,500 paid in settlement of the judg-
ment. That action was pending at the time of the trial of
this one, and, with the other evidence adduced on that sub-
ject, tended strongly to show that the officers of the city were
not called upon to take the position they did and settle the
judgment against the earnest protest of Baird, for it was amply
protected in any event.
These prominent facts, together with other facts and cir-
cumstances presented by the record, should, we think, have
gone to the jury so that it might pass upon the good faith of
the city's action, upon the same principle as that underlying
the case of Wheeler v. Sweet {stipra).
The judgment should be reversed and a new trial granted,
with costs to abide the event.
IIaight, Vann, Cullen and Werner, JJ., concur; Gray
and Martin, JJ., absent.
Judgment reversed, etc.
The People of the State of New York, Respondent, v.
Thomas Tobin, Appellant.
1. Murder — Sufficiency of Evidence — Insanity. The evidence
upon the trial of an indictment for murder reviewed and held sufficient
to sustain a verdict convicting the defendant of the crime of murder in
the first degree, including, as an essential part of such verdict, the finding
that the defendant was sane when he committed the act.
2. When Court Is Justified in Refusing to Appoint Commission
UNDER THE STATUTE (CODE CRIM. PRO. § 658) TO EXAMINE DEFENDANT
and Report as to His Sanity. Where a trial court, at the request
of counsel for a defendant charged with the crime of murder, at the
time the indictment was moved for trial, appointed two expert physicians
to examine the defendant and report as to his sanity, and adjourned the
trial until such report could be made, and the physicians, after making
an examination , reported that in their judgment the defendaut was sane, iu
which opinion a third physician, who at one time had charge of defend-
ant, concurred, the court is justified, in the exercise of sound discretion,
in denying a motion made in behalf of defendant, based upon the affi-
1903.] People v. Tobin. 279
N. Y. Rep.] Statement of case.
davits of his attorneys, for a commission, pursuant to section 658 of the
Code of Criminal Procedure, lo examine the defendant and report to the
court as to his sanity at the time of the examination, where no evidence
is presented to controvert the report of the medical experts, who examined
the defendant, and to show that he was insane, except the affidavits of his
counsel, which contained few facts and consisted mainly of the expression
of their own opinions, unsupported by the affidavit of any physician.
3. Instruction as to Presumption op Sanity op Defendant.
An instruction to the jury that " if evidence is given tending to establish
insanity, then the general question is presented * * * whether the
crime, if committed, was committed by a person responsible for his acts;
and upon this question the presumption of sanity and the evidence are
all to be considered, and the prosecutor holds the affirmative, and if a
reasonable doubt exists as to whether the prisoner is sane or not, he is
entitled to the benefit of that doubt," must be considered as embodying
the correct rule upon the subject.
4. Same — Trial Court Not Bound to Charge Request op Coun-
sel Where Substantially the Same Proposition Has Already
Been Charged. Where the court has carefully defined reasonable
doubt and has charged in various ways that the jury must be convinced
of the defendant's guilt beyond a reasonable doubt, and that if there
is a reasonable doubt as to his sanity he is entitled to the benefit of
that doubt, the refusal to charge substantially the same propositions in
the language of defendant's counsel does not constitute reversible error.
5. Same — Examination op Alleged Error in Charge — When
Such Error Cannot Be Reviewed Without an Exception Thereto
— Effect op Section 528, Code op Criminal Procedure. An instruc-
tion by the trial court that it is " not necessary that every circumstance
should be proved beyond a reasonable doubt," does not constitute rever-
sible error where it is apparent that the court did not mean that every cir-
cumstance constituting a link in the chain of circumstances necessary to
establish "the fact of killing by the defendant " need not be proved beyond
a reasonable doubt, but that every incidental circumstance, such as those
bearing upon the probabilities that the main circumstances were true, or
that every fact essential to convict, such as "the death of the person
alleged to have been killed," need not be proved beyond a reasonable
doubt; moreover, such instruction cannot be reviewed under the statute
(Code Crim. Pro. § 528) in the absence of a specific exception thereto,
when the court is satisfied that the verdict is right and based upon
evidence that is clear and convincing.
(Argued October 15, 1903; decided October 27, 1903.)
Appeal from a judgment of the Supreme Court, rendered at
s. Trial Term for the county of New York December 22,
280 People v. Tobin. [Oct.,
Opinion of the Court, per Vann, J. [Vol 176.
1902, upon a verdict convicting the defendant of the crime of
murder in the first degree.
The facts, so far as material, are stated in the opinion.
Henry W. Unger and Abraham Levy for appellant. In
weighing the evidence upon the issue of insanity, the
People are not entitled to have thrown in the scale, in their
favor, any presumption of sanity. (CPDonnell v. Rodiger, 76
Ala. 222; Best on Evi. [8th ed.] 304; Justice v. Lang, 52
N. Y. 329 ; Graves v. Colwell, 90 111. 615.) It was error for
the court to refuse the request to charge that, if the jurors
entertain a reasonable doubt, from the evidence in the case, as
to the sanity or insanity of the defendant at the time of the
commission of the act charged in the indictment, he is entitled
to the benefit of that doubt and must be acquitted. ( Walker
v. People, 88 N. Y. 89.)
Williarn Travers Jerome, District Attorney {Howard &
Gans of counsel), for respondent. The court charged properly
as to the burden of proof upon the issue of sanity. (Brother-
ton v. People, 75 X. Y. 159 ; O'Connell v. People, 87 N. Y.
377 ; Walker v. People, 88 N. Y. 81 ; People v. Egnor, 175
N. Y. 427 ; People v. Leonardi, 143 K Y. 360.) The court
charged clearly that the prosecution must establish the defend-
ant's sanity beyond a reasonable doubt, and it was not error
to refuse to charge the same matter in the language requested
by the defendant's counsel. (People v. Pallister, 138 N. Y.
601.) No error is presented in the instructions on the weight
and effect of circumstantial evidence. (People v. Leonardi,
143 N. Y. 360.) The refusal to appoint a commission to
determine the defendant's sanity at the time of the trial was
a proper exercise of discretion on the part of the court and
resulted in no prejudice to the defendant. (People v.
McElvaine, 125 N. Y. 596.)
Vann, J. The homicide which is the subject of this,
appeal occurred on the 27th of September, 1902. The next
1903.] People v. Tobin. 281
N. Y. Rep.] Opinion of the Court, per Vann, J.
month the defendant was indicted, and on the 16th of Decem-
ber following, after a trial which lasted eight days, the jury
found him guilty of murder in the first degree and judgment
was pronounced accordingly. The counsel who conducted
the trial are entitled to the thanks of the court and- of the
public for the thorough investigation made and the prompt
disposition of this important case.
The defendant is thirty-seven years old and has spent about
nineteen years of his life in prison. The offenses for which he
was thus punished were crimes against property and he does not
appear to have been charged with a crime against the person
until the present accusation was made against him. In October,
1898, he was transferred from the state prison at Dannemora,
where he was confined for grand larceny, to the Matteawan
Insane Asylum for custody and treatment as an insane convict.
On the 13th of December, 1900, he was returned to prison " as
recovered." At the time of the homicide he was employed
as a waiter at No. 38 West 29th street, in the city of New
York, known as the Empire Cafe, a place of resort for prosti-
tutes and their patrons. At one o'clock on the morning of
September 27th, 1902, the police, according to their custom,
cleared the place of all occupants except the employees, and
during the rest of the night the door leading from the street
to the first floor was locked, but access to the premises could
be had through a Chinese restaurant in the basement. About
an hour later, James Craft, a resident of Staten Island, forty-
six years of age, and already under the influence of liquor,
entered the basement, where a prostitute began to talk with
him, and, upon the suggestion of the defendant, all three went
upstairs into the cafe. The defendant brought in beer and
whisky ordered by Craft, who, in paying therefor, exhibited
a roll of bills amounting to twenty-five or thirty dollars.
After that all the employees and other persons left the place,
some through the efforts of the defendant, except himself,
Craft and McEneaney, who was the barkeeper. Craft and
the defendant continued to drink until both were intoxicated,
and at about five o'clock in the morning there was talk between
282 People v. Tobin. [Oct.,
Opiniou of the Court, per Vann, J. [Vol. 176.
thein, approaching a quarrel, about some change claimed to be
due after paying for drinks. After this discussion ended there
was silence for about twenty minutes, and McEneaney, who was
behind the bar where he could hear but could not see what was
going on, testified that he then heard a thud followed by a fall.
Going to the door he saw Craft on the floor, bleeding and sense-
less, and the defendant was jumping on him, tearing his clothes
and kicking him. Craft's face was swollen and covered with
blood. McEneaney went over to the defendant, pushed him
away and asked him what he was doing. He made no reply,
but went downstairs, while McEneaney tried to pour some
brandy down the throat of the injured man, but did not suc-
ceed " because his teeth were clinched." During his effort
he got some blood on his hands, and while he was washing
it off in another room the defendant returned, seized the
body by the feet and was dragging it downstairs, the head
bumping on the steps, when McEneaney took hold of the
arms and helped carry the man to the foot of the stairs.
McEneaney then said : " Open the Chinese door and give
him some air." The body was put down, the defendant went
into the Chinese restaurant, McEneaney went upstairs for
some more brandy and on his return the defendant had the
body in the cellar under the basement, and was standing over
it with a butcher's cleaver in his hand. The head was nearly
off and the defendant struck the body once with the cleaver
in the presence of McEneaney, who asked him what he was
doing and pushed him back, but was told to mind his own
business. He was afraid the defendant was going to hit him,
and when told to take off his shirt, which was bloody, he did
so, in fear of his life, and as the shirt came off over his head
he pushed Tobin " with shirt and all " and ran upstairs.
Ho put on his coat and hat, took a drink, picked up a bottle
to defend himself and went downstairs quietly, where he saw
the defendant holding the head, severed from the body, in his
hands and walking toward the furnace in the cellar. He then
ran out of doors, called a cab, drove to a station house and
informed the police. This is an outline of the story told by
1903.] People v. Tobin. 283
N. Y. Rep.] Opinion of the Court, per Vann, J.
McEneaney, who was jointly indicted with the defendant, but
was not tried with him. It was corroborated in nearly all
respects by the testimony of several witnesses.
When the police arrived they found the body entirely
naked, concealed under some rubbish in the cellar. There
was a pool of blood two feet wide near the furnace, with a
trail of blood leading to the furnace door. The head and
clothing, half charred, were in the furnace, where a fire had
been kindled but was nearly out, as the draft did not work.
The defendant was found with blood on his hands and cloth-
ing hiding in the saloon. He had in his pocket thirty-six
dollars in bills, besides some silver and coppers. A cleaver,
old and with a rough edge, was picked up in the caf6 and
was identified as one kept for use in the Chinese restaurant.
The physician who made the autopsy found all the organs
of the body in a healthy condition. Thirteen different blows
had been struck with an instrument having more or less of a
sharpened edge before the head had been severed. There
was a fracture of the skull, which would probably have
caused death in time, but the surgeon was of the opinion,
from the flow of blood and other physical signs, that the
man was alive and the heart still beating when his head was
cut off.
We will not continue this painful narrative, for the learned
counsel for the defendant does not ask us to review the facts ;
still we have examined 'them with care, and find that the evi-
dence sustains the verdict, including, as an essential part
thereof, that the defendant was sane when he committed the
act. The only substantial contest at the trial was over the
sanity of the defendant, and upon that issue the weight of
evidence was with the People. Four questions of law have
been argued before us which we will now consider.
1. On the 4th of December, 1902, when the trial of the
indictment was moved, the counsel for the defendant stated
that they believed he was insane and asked the court to
appoint some competent physician for the purpose of making
an examination as to his mental condition. The court there-
284 People v. Tobin. [Oct.,
Opinion of the Court, per Vann, J. [Vol. 176.
upon adjourned until the 8th of December, and in the mean-
time the justice presiding requested two expert physicians of
long experience and high standing to examine the defendant
and report as to his sanity. They made an examination and
reported that in their judgment the defendant was sane and
a third physician, who at one time had charge of the defend-
ant, concurred in that opinion. When the court met pursuant
to adjournment amotion was made in behalf of the defendant,
based upon the affidavits of his attorneys, for a commission
pursuant to section 658 of the Code of Criminal Procedure,
but in view of the report of the experts appointed by the
court the motion was denied. The case proceeded to trial
and it is now claimed that the denial of the motion was rever-
sible error, but we think this point is not well taken.
The statute authorizes, but docs not require, the court to
appoint a commission to examine " a defendant who pleads
insanity " and report " as to his sanity at the time of the
commission of the qrime ; " or when " a defendant in confine-
ment, under indictment," either before or after conviction,
appears " to be insane," the court <4 may appoint a like com-
mission to examine him and report * * * as to his sanity
at the time of the examination." (Code Crim. Pro. § 658.)
When the motion in question was heard no plea of insanity
had been made by the defendant, but this is not important
because the application was for a report as to his mental con-
dition at the time of the proposed examination. The court
was authorized to appoint a commission for this purpose,
provided the defendant appeared to be insane when the motion
was made. Since eminent medical experts, appointed
informally upon the suggestion of the defendant's counsel,
had within a day or two, after personally examining him,
reported that he was sane, how could the court decide that he
appeared to be insane when no evidence was presented to
show it, except the affidavits of the counsel themselves, who
did not claim to be experts and who presented no supporting
affidavit from any physician ? Their affidavits contained few
. facts and were confined mainly to the expression of their own
1003.] People v. Tobin. 285
N. Y. Rep. J Opinion of the Court, per Vann, J.
opinions. The facts, except the confinement of the defendant
in the Matteawan asylum, related to acts and words of the
defendant which may have been feigned and which it is
reasonable to believe, in view of the testimony subsequently
given at the trial, were in fact feigned. The question was
within the sound discretion of the court, and we think it was
discreetly exercised. The 'subject was thoroughly discussed in
a recent case, the facts of which were 60 analogous as to make
it controlling. (People v. McElvaine, 125 N. Y. 596, 605.)
2. In charging the jury upon the question of insanity the
court said : " Sanity being the normal and usual condition of
mankind, the law presumes that every individual is in that
state. Hence the prosecutor may rest upon that presumption.
Without other proof, the fact is deemed to be proved prima
facie. Whoever denies this or interposes a defense based
upon its untruth, must prove it. The burden, not of the
general issue of the crime by a competent person, but the bur-
den of overthrowing the presumption of sanity or of showing
insanity, is upon the person who alleges it. And if evidence
is given tending to establish insanity, then the general ques-
tion is presented to the court and jury whether the crime, if
committed, was committed by a person responsible for his
acts. And upon this question the presumption of sanity and
the evidence are all to he considered, and the prosecutor holds
the affirmative, and if a reasonable doubt exists as to whether
the prisoner is sane or not, he is entitled to the benefit of that
doubt."
The counsel for the defendant claims that it was error to
instruct the jury upon the vital question in the case that the
presumption of sanity and the evidence are all to be con-
sidered. He argues that the function of the presumption
with which the trial starts is ended when evidence has been
given tending to show that the defendant is insane; that
thereupon the presumption becomes functus officio and the
case proceeds as if it had never existed ; that the burden of
proof thus thrown upon the prosecuting officer requires him
to establish sanity by evidence, without any aid from the
286 People v. Tobin. [Oct.,
Opinion of the Court, per Vann, J. [Vol. 176.
dead presumption, which is not evidence ; that the only use
of the presumption is to relieve the People of the necessity
of proving sanity in the first instance, and when it has been
overthrown by evidence for the defendant, while the jury
may consider it they are not required to and should not be
told by the court that it is their duty to.
This point was not raised by an exception, and the portion
of the charge above quoted was taken verbatim et literatim
from the opinion in Broihsrton v. People (75 N. Y. 159, 162).
That case has been cited and followed so faithfully for a
quarter of a century both by trial courts and appellate courts,,
including ourselves, that we regard it as the established law
of the state, and while we appreciate the argument of counsel
upon the subject, discussion is foreclosed, for the question is
not open to consideration.
3. The defendant asked the court to charge the jury that if
they " entertained a reasonable doubt from the evidence in the
case as to the sanity or insanity of the defendant at the time
of the commission of the act charged in the indictment he is
entitled to the benefit of that doubt and must be acquitted."
The court declined to vary his charge and an exception was
taken.
In the body of the charge the court carefully defined rea-
sonable doubt and told the jury, among other things, that
" Whether the defendant killed Craft is a question of fact
which you must determine from all the evidence in the case,
and that must be established beyond a reasonable doubt."
"If the People have failed to establish by the evidence,
beyond a reasonable doubt, that there was premeditation and
deliberation, then the prisoner is entitled to the benefit of that
doubt." " Before you can find the defendant guilty of mur-
der in the first degree, it is necessary that the facts should
satisfy you beyond a reasonable doubt that the defendant
struck the deceased with a deadly weapon and that he had in
his mind at the time he struck the blow or blows or beheaded
him, a deliberate and premeditated design to kill him." " You
must be convinced of the prisoner's guilt beyond a reasonable
1903.1 People v. Tobin. 287
N. Y. Rep.] Opinion of the Court, per Vann, J.
doubt. * * *." " If you are satisfied beyond a reasonable
doubt of the guilt of the prisoner, it will be your duty to say
so." " If a reasonable doubt exists as to whether the prisoner
is sane or not, he is entitled to the benefit of that doubt."
" But it all rests upon your good judgment to determine
* * * whether this defendant knew the nature of the
crime that he was committing, whether he knew that he was
doing a wrongful act or not. If you entertain a reasonable
doubt upon that point he is entitled to the benefit of that
doubt." " If you reach the conclusion from the evidence
that the defendant is innocent, it is your duty to acquit him,
but, on the other hand, if you come to the conclusion from
the evidence beyond a reasonable doubt that the defendant
committed the crime and that he was sane when he committed
it then it is your duty to find him guilty."
At the close of the charge the counsel for defendant asked
the court to instruct the jury that " When the defense of
insanity was interposed in this case and throughout the case
this defendant is entitled to the benefit of the reasonable
doubt resting upon the question of insanity." The court
remarked that he had charged that, and when further asked
to charge it in those words said it was unnecessary, but added,
" I charge the jury that if they have a reasonable doubt as to
his sanity he is entitled to the benefit of that doubt." The
learned justice further said : " Gentlemen, after the insanity
is first established or the defendant's witnesses give testimony
tending to show that the defendant is insane) it then devolves
upon the People to satisfy you beyond a reasonable doubt
that at the time he committed the homicide he was sane."
Upon the request of the defendant he also charged " that the
defense of insanity interposed here by the defendant need
not be proven beyond a reasonable doubt." Then followed
the request, with reference to which the exception was taken.
It is claimed that the court did not make it clear, while the
request did, that the defendant should be acquitted if the jury
had a reasonable doubt as to his sanity. It would be very
remarkable if the jury failed to understand the effect of a
288 People v. Tobin. [Oct.,
Opinion of the Court, per Vann, J. [Vol. 176.
reasonable doubt and that if they entertained it as to any one
of the various elements of guilt, they should acquit the defend-
ant. How could they give him the benefit of a reasonable
doubt, as they were repeatedly told to in certain contingen-
cies, except by acquitting him? They were told what the
People were bound to show beyond a reasonable doubt in
order to convict, and that the defense of insanity relied upon
by the defendant need not be proved beyond a reasonable
doubt. How could they observe these directions or give any
effect to them except by finding a verdict of acquittal, if a
reasonable doubt existed in their minds as to the sanity of the
defendant ? We find no error here, for the court, as we have
repeatedly held, was not bound to charge in the language of
counsel, provided the substance of the request was fairly cov-
ered, as we think it was. {People v. Pallister, 138 N. Y.
601.)
4. It is further claimed, although the point was not raised
by an exception, that it was error for the court to charge that
it was not "necessary that every circumstance should be
proved beyond a reasonable doubt."
The court did not mean by this that every circumstance
constituting a link in the chain of circumstances necessary to
establish " the fact of killing by the defendant" need not be
proved beyond a reasonable doubt, but that every incidental
circumstance, such as those bearing upon the probabilities that
the main circumstances were true, or that every fact essential
to convict, such as " the death of the person alleged to have
been killed," need not be proved beyond a reasonable doubt.
(Penal Code, § 181.)
Moreover, it is to be remarked that only errors raised by
exception require a new trial, and it is only when we are
satisfied that the verdict was against the weight of evidence,
or against law, or that justice requires a new trial, that
we are permitted to reverse whether an exception shall have
been taken or not in the court below. (Code of Crim. Proc.
§ 528.) In this case we think the verdict was right and that
it was based upon evidence that is clear and convincing. We
1903.] People v. Ennis. 289
N. Y. Rep.] Statement of case.
do not think that it was against the weight of evidence, or
against law, or that justice requires a new trial, and hence,
owing to the absence of an exception we are not at liberty to
exercise a discretion confided to us for the protection of
persons under sentence of death, as to whose guilt we may
have some doubt. Exceptions are still necessary, notwith-
standing the statute, to fully protect th3 rights, and especially
the technical rights, of a person on trial, even for a capital
offense. This is just, for if an exception is taken the court,
warned by the challenge, may correct the error on the spot
and thus avoid the expense and delay involved in case a new
trial should be ordered.
As we find nothing to justify a reversal, the judgment
must be affirmed.
Parker, Ch. J., Gray, O'Brien, Bartlett, Haioht and
Martin, JJ., concur.
Judgment of conviction affirmed.
The People of the State of New York, Respondent, v.
"William H. Ennis, Appellant.
1. Murder — Sufficiency of Evidence. The evidence upon the trial
of an indictment for murder reviewed and held sufficient to sustain a ver-
dict convicting the defendant of the crime of murder in the first degree.
2. Same — "When Judgment Convicting Defendant of Murder
Will Not Be Reversed in the Absence of Exceptions. A judg-
ment convicting a defendant of murder will' not be reversed and a new
trial ordered, in the absence of any exception, where the court is satisfied,
upon a review of the record, that the evidence well supported the verdict
of the jury; that it abundantly established the guilt and the responsibility
of the defendant, and that his substantial rights have not been preju-
dicially affected.
(Argued October 15, 1908; decided October 27, 1903.)
Appeal from a judgment of the Kings County Court, ren-
dered at a Trial Term May 22, 1902, upon a verdict convict-
ing the defendant of the crime of murder in the first degree.
The facts, 60 far as material, are stated in the opinion.
19
290 People v. Ennis. [Oct.,
Opinion Per Curiam. [Vol. 176.
John P. Kelly, John T. Norton and «/. Orattan McMahon
for appellant. Much testimony was admitted on the trial
which was clearly immaterial and incompetent, and which,
though not objected to by counsel for the defense, should not
have gone upon the record or have been suffered to remain
thereon, and its admission prejudiced the defendant's rights
and injured and tended to destroy his defense, and resulted in
serious injustice to him. Justice, therefore, requires that a
new trial be granted. (People v. Decker, 157 N. Y. 195 ;
People v. Scott, 153 N. Y. 40 ; People v. Shea, 147 N. Y. 80 ;
People v. Cignarale, 110 K Y. 23 ; People v. Kelly, 113, N.
Y. 647 ; People v. Jloch, 150 N. Y. 291 ; People v. Young,
151 K Y. 210; People v. Constantino, 153 N. Y. 24.)
John F. Clarke, District Attorney (Robert H. Roy of
counsel), for respondent. The verdict was not contrary to
the law or evidence or against the weight of evidence ; no
injustice has been done the defendant, either in the manner
of conducting the trial or by the verdict rendered. (People
v. Tice, 131 N. Y. 651 ; People v. Conroy, 153 N. Y. 174.)
Per Curiam. The defendant was indicted for the murder
of his wife and, being tried upon the charge, was found
guilty by a jury of murder in the first degree. The killing
is not denied and the evidence upon the trial showed that the
crime was committed under circumstances of peculiar atrocity.
These facts appeared. About a year after the marriage of
the defendant with the deceased, and after the birth of their
child in September,' 1901, the latter left her husband ; went to
her mother's residence and dwelt with her thereafter. She
then commenced an action for separation upon the ground of
cruel and inhuman treatment. A judgment was rendered in
her favor by default, which awarded her alimony. A few
minutes before seven o'clock on the morning of the fourteenth
day of January, 1902, the defendant entered the residence
of his mother-in-law ; went to her room, and, while she was in
bed with his infant child, applying a foul epithet to her, he
1903.] People v. Ennis. 291
N. Y. Rep.] Opinion Per Curiam.
shot her in the breast with a revolver. He then said that he
was going to shoot his wife and, turning from the bed, met
the latter coming from the adjoining room. He told her that
he was going to shoot her ; struck her ; threw her down upon
the floor and, disregarding her entreaties not to shoot her, or
that she might first be allowed to go to confession, shot her,
also, in the breast, with the result of causing immediate
death. One of her sisters, who had taken up the child from
the bed and held it in front of the defendant, in an effort to
prevent the shooting, was threatened, herself, with death, if
she did not get out of the way. He then left the house ;
went to a hotel and was there arrested, while asleep in bed.
He stated to the officers, who arrested him, that he knew
what he had done and was willing to suffer for it, and he
expressed his regret that he had not killed his mother-in-law.
lie, subsequently, volunteered similar statements, when con-
fronted with his mother-in-law in the hospital. The only
defense, which was relied upon at the trial, was that of
insanity. Upon that issue testimony was given in his behalf
by relatives, friends, associates and medical experts; from
which it was made to appear that, when a lad, he had received
injuries in his head from a fall ; that thereafter, and in later
life, he showed symptoms of being afflicted with the disease of
epilepsy, manifesting itself, at times, in convulsions, and that
he had delusions, inducing acts of violence. According to the
evidence of the various lay and expert witnesses, who testified
in his behalf, whether from observation, or from examination,
they believed him to be of unsound mind and to be a para-
noiac. As against the evidence thus adduced upon the ques-
tion of the defendant's sanity, the People introduced other
evidence, in the testimony of medical practitioners and experts,
who had capacity to speak, either from acquaintance with,
or examination of, the defendant, and in that of various
lay witnesses, who were acquainted or associated with him.
According to the evidence of the latter class of witnesses,
he had been rational in his conduct for several years prior
to the date of the occurrences in question, though a hard
292 People v. Ennis. [Oct.,
Opinion Per Curiam. [Vol. 176.
drinker, and they had observed none of the usual epileptic
manifestations; while, according to the former class, he
was, in their opinion, not an epileptic and was merely
chamming. In addition to the evidence directed towards
showing the sanity, or insanity, of the defendant, the jurors
had before them the evidence of his conduct prior to, and
immediately following, the killing ; from which they were war-
ranted in concluding that he was perfectly rational and not
acting under the influence of any delusion, or maniacal attack.
Upon the rendition of the judgment of separation and for
alimony, he openly declared in court that he would " rot in
jail before he would give a cent." Shortly before the killing
he had declared his purpose to kill his wife, in a letter and in
conversation. In the evening of the day before, he was in
a liquor saloon and cashed a check, which he had received from
the sale of the furniture in his residence. Later in the even-
ing, and until nearly one o'clock in the morning, he was drink-
ing in another saloon and in conversation with the proprietor
of the saloon, invited him to have the last drink he would
ever have with him ; talked about his mother-in-law and said
he would put a bullet in her, as 6he had made all the trouble
between him and his wife. He, then, went to another bar-
room, where he exchanged some of his money for the check
of the proprietor, payable to the order of his sister. He, next,
appeared in the residence of his mother-in-law ; where, under
the circumstances already narrated, he deliberately shot her
and then his wife; the testimony as to those occurrences
,being given by his mother-in-law and the two sisters of his
wife, who were present. From their testimony, it was evident
that his conduct in the room was that of a man intending, in
cold blood, to commit murder and comprehending, fully, what
he was doing and was about to do. Whether, upon a con-
sideration of all the evidence adduced, the defendant was
laboring under a defect of reason, or was the subject of an
epileptic attack, was a question for the determination of the
jurors, as a disputed question of fact. Their verdict is con-
clusive upon us and we do not see how they could have well
1903.] Hall v. City of New York. 293
N. Y. Rep.] Statement of case. '
reached any other determination upon the case than they
did.
The defendant does not present to us any exception taken
upon the trial, upon which error is predicated as warranting
the reversal of the judgment of conviction. He appeals to
our power to order a new trial, in the absence of any excep-
tions, upon the ground that a review of the record 6hows that
justice demands it. We have reviewed the record. We are
satisfied that the evidence well supported the verdict of the
jury ; that it abundantly established the guilt and the responsi-
bility of the defendant and that his substantial rights have
not been prejudicially affected. The power conferred upon
this court in the review of capital cases is not called into exer-
cise by the appearance of some error, which no exception
pointed out and which cannot be seen to have affected the
substantial rights of the accused. The demands of justice
have been satisfied in the trial which, has been had and, upon
the whole case, we reach the conclusion that no sufficient
grounds have been presented, and none exists, to justify a
reversal of the judgment of conviction.
Parker, Ch. J.; Gray, O'Brien, Bartlett, Haight, Mar-
tin and Vann, J J., concur.
Judgment of conviction affirmed.
Robert S. Hall, Respondent, v. The City of New York et
al., Appellants, et al., Respondents.
Appeal — Modification of Judgment. Where, in an action to fore-
close a mechanic's lien, a judgment has been entered which does not give
to a claim the priority over all the other claims to which it is entitled, but
places it last in the order of payment, and the claimant appeals, perfect-
ing his appeal as to some of the parties, but not as to the others, the
judgment should be modified, where it can be done without doing injus-
tice to any of the parties, by giving the claimant priority over those
claimants against whom he perfected the appeal.
Hall v. City of New York, 79 App. Div. 102, modified.
(Argued October 19, 1903; decided October 27, 1903.)
294 Hall v. City of New York. [Oct.,
Points of counsel. [Vol. 176.
Appeal from a judgment of the Appellate Division of the
Supreme Court in the second judicial department, entered
March 30, 1903, affirming a judgment in favor of plaintiff
and certain of defendants entered upon the report of a referee
establishing the validity and priority of certain liens and
claims filed against the city of New York.
John Quiiui for the "Western National Bank, appellant.
The Appellate Division had the power and should have modi-
fied the judgment in accordance with the undoubted law of
the case so as to give preference to the claim of the bank.
(Code Civ. Pro. § 3401.)
George L. Ii Ives, Corporation Counsel (James McKeen of
counsel), for the city of New York, appellant.
Frederick P. Bellamy and L JV. Sievwright for plaintiff,
respondent. It is admitted upon the record that no appeal to
the Appellate Division was taken by the appellant, the West-
ern National Bank, against the plaintiff or his judgment
herein. It follows, therefore, that the portions of the judg-
ment herein which established the validity and priority of
plaintiff's lien and judgment over the claim and assignment of
the appellant, the Western National Bank, is res adjudicata,
and binding and conclusive against the said appellant, and
cannot be affected by this appeal. ( West v. Place, 80 Hun,
255 ; Illscock v. Phelps, 2 Lans. 106.) The appellant, the
Western National Bank, having failed within the proper
time to serve its notice of appeal to the Appellate Division
either upon the clerk of the court, or the " adverse party,"
within the meaning of section 1300 of the Code, its appeal is
ineffectual for any purpose and must be dismissed. ( West v.
Place, 80 Hun, 255 ; Iliscock v. P/ielps, 2 Lans. 106 ; Cotes
v. Carroll, 28 How. Pr. 436.) The attempt of the appellant,
the Western National Bank, to use the appeal of the city to
attack in this court plaintiff's judgment, which it has not
appealed from, must fail. ( Wait v. Van Allen, 22 N. Y.
1903.] Hall v. City of New York. 295
N. Y. Rep.] Opinion Per Curiam.
321 ; -Clapp v. Hawley, 97 N. Y. 613 ; Murdoch v. Jones,
3 App. Div. 223 ; 'Stanton v. £oA&r, 19 Misc. Rep. 383.)
Theodore S. Rumney, Jr., for David J. Dannat et al.,
respondents. This court has no power to modify the judg-
ment so as to give the Western National Bank a preference
over the respondents Dannat and Pell. ( West v. Place, 80
Hun, 255 ; Cotes v. Carroll, 28 How. Pr. 436 ; Hiscock v.
Phelps, 2 Lans. 106.)
Clarence Edwards for William C. Card, respondent. This
court will not assume original jurisdiction by changing the
order of precedence. {Benedict v. Arnoux, 154 N. Y. 715.)
John T. Sachett for Otto E. Reimer Company, respondent.
The failure of the defendant Western National Bank to per-
fect its appeal as to the plaintiff and some of the defendants
requires that the appeal of the bank be dismissed. ( West v.
Place, 80 Hun, 255.)
Robert U. Wilson for Yellow Pine Company, respondent.
James F. Quigley for Christian Zieseniss, respondent.
Per Curiam. The only questions which this court deems
it necessary to consider arise upon the appeal of the Western
National Bank. As to all the other questions involved we
concur in the conclusions of the court below. If the bank
had properly appealed to that court, and served its notice of
appeal upon all the parties, it is obvious that the error of the
referee in subordinating its claim to those of the parties who
had filed mechanics' liens would have been corrected. But
by reason of its negligence in that respect the learned Appel-
late Division was required to hold that it could not, in justice
to the other parties, either reverse the judgment entered upon
the referee's report, or modify it by giving to the claim of
the bank the full preference to which it was justly and
legally entitled. This conclusion was based upon the fact
296 Hall v. City of New York. [Oct.,
Opinion Pei* Curiam. [Vol. 176.
that the judgment was final and binding upon the bank,
which had not appealed as to the plaintiff. The court below
were of the opinion that if it could modify the judgment by
determining the questions between the remaining parties who
were before the court without working injustice to those
whose interests were involved, it would be its duty to modify
it in accordance with the law. In that it was obviously
right: It was, however, of the opinion that that could not be
done either in whole or in part. We think otherwise, and
that the judgment can be modified in part without injustice
to any of the parties. The defendants Zufall, Yaeger and
Bogardus, although not served with a notice of the bank's
appeal, were preferred lienors and their claims were entitled
to preference over the claims of all the other lienors and were,
therefore, superior to those of any of the other parties includ-
ing the bank who did not appeal as to them. Consequently,
the allowance of the bank's claim would not have affected
them, as the fund was entirely sufficient to pay the amount
of their liens as well as the claim of the bank. Under the
judgment, from which no appeal was taken, the plaintiff's
claim was also superior to that of the bank. Moreover, the
plaintiff's claim could not be made superior to those of the
Yellow Pine Company, Shuldiner or Dannat & Pell without
working injustice to them, and, hence, the court was right in
refusing to modify the judgment so far as it would affect
their claims. But as the claims of Zieseniss, Reiraer Com-
pany and Card were subsequent to that of the plaintiff, so
that they would not be affected by the failure of- the bank to
appeal as against the plaintiff, and as the bank appealed as to
them, we are of the opinion that the court below should have
modified the judgment by placing the bank's claim in the
order of payment immediately after the plaintiff's, and that
the payment of the claim of the bank should have been given
preference over their claims. Hence, we conclude that the
judgment should have been modified by the court below so as
to provide for the payment of the various claimants in the
following order: Zufall, Yaeger, Bogardus, Yellow Pine
1903.] O'Keeffb v. City op New York. 297
N. Y. Rep.] Statement of case.
Company, Shuldiner, Dannat & Pell, Robert S. Hall, Western
National Bank, Zieseniss, Reimer Company, Card.
It follows that the judgment should be modified in accord-
ance with these views, and as thus modified affirmed, with
costs to all the parties, to be paid by the city of New York.
Parker, Ch. J., Gray, Haight, Martin, Vann, Cullen
and Werner, JJ., concur.
Judgment accordingly.
John G. O'Keefke, as Receiver of The Matt Taylor
Paving Company, Appellant, v. The City of New York,
Respondent.
New York (City of) — Interest on Claim against City — Runs
Only from Time of Demand of Payment. When a judgment is
recovered against the city of New York for various sums due upon a con-
tract for paving certain streets, interest cannot be awarded upon such
claims from the maturity thereof, but only from the time that payment
was demanded.
OKeeffe v. City of New York, 86 App. Div. 626, affirmed.
(Argued October 21, 1903; decided October 30, 1908.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered July
22, 1903, affirming a judgment in favor of plaintiff entered
upon a verdict directed by the court and an order of such
trial court reducing the verdict as directed by the amount of
interest upon each of the demands sued upon from the date
when such demands became due to the date of service of notice
of claim upon the comptroller.
This action was brought to recover several installments due
under a paving contract providing for the payment of a part
of the contract price in ten annual installments.
William A. Barber and Henry D. Ilotehkiss for appel-
lant. The obligation to pay does not depend upon any
demand to be made by the contractor, but follows from the
298 O'Keeffe v. City of New York. [Oct.,
Opinion Per Curiam. [Vol. 176.
words of the contract. Under 6och circumstances the debt
carries interest from the day the moneys were payable. ( Van
Bensselaer v. Jewett, 2 N. Y. 135 ; de Carricarti v. Blanco,
121 N. Y. 232 ; Adams v. R P. Bank, 36 N. Y. 255 ; San-
ders v. Z. S. cfe M. S. By. Co., 94 N. Y. 641 ; Chester v.
Jumel, 125 N. Y. 237 ; Young v. Oodbe, 15 Wall. 565 ; B. cfe
7. (7. Cb. v. B. I. cfe 7?. B. B. Co., 68 Fed. Rep. 105; Mans-
field v. N. Y. C cfe 77. B. R. B. Co., 114 N. Y. 331 ; TF#-
son v. 6% o/ TVoy, 135 N. Y. 96.)
George L. Bives, Corporation Counsel {Theodore Connoly
and C%<2&* Mellen of counsel), for respondent. Interest upon
claims against the city runs only from the date of the demand
for payment thereof filed in accordance with the Greater New
York charter. {Meyer v. Mayor, etc., 12 N. Y. S. R. 674;
Frankel v. Mayor, etc, 18 N. Y. S. R. 241; Taylor v.
Mayor, etc., 67 N. Y. 87; Sweeny v. City of New York, 173
K Y.414; Donnelly v. City of Brooklyn, 121 N. Y. 20 ;
Paul v. Mayor, etc., 7 Daly, 144 ; People v. Canal Comrs.,
5 Den. 404 ; Darlington v. Mayor, etc., 31 N. Y. 193.)
P^r Curiam. The only question brought up for review is
as to the time that interest should be allowed upon the plain-
tiffs claim. It would be exceedingly difficult for the comp-
troller of a large city to look up claimants or their heirs or
assigns and tender payment as their claims matured and
became due. If interest at six per cent is chargeable from
the date of the maturity of claims many persons might refrain
from presenting them during the period permitted by the
Statute of Limitations. The allowing of interest from such
maturity would afford a safe and profitable investment which
might become very attractive to many and induce them to buy
up claims for the purpose of holding them for the interest.
This would impose a burden upon the city that it ought not
to bear.
The better and more just way is to follow the rule laid
down in Taylor v. Mayor, etc., of JV. Y. (67 N. Y. 87, 94)
1903.] Dykman v. IT. S. Life Ins. Co. 299
N. Y. Hep.] Statement of case.
and Sweeny v. City of New York (173 N. Y. 414) and award
interest on claims only after the demand of payment has been
made.
The judgment appealed from should be affirmed, with costs.
Parker, Ch. J., Gray, Haioht, Martin, Vann, Cullen
and Werner, JJ., concur.
Judgment affirmed.
William N. Dykman et al., as Executors of Edward T.
Hunt, Deceased, Appellants, v. The United States Life
Insurance Company, Respondent.
Trial— When Question Whether Judgment for Monet May Be
Recovered Is Dependent upon Decision of Equitable Questions the
Issue Is Not Triable by Jury, as a Matter of Right, under Code
Civ. Pro. § 968. An action brought by the executors of a decedent
demanding judgment that a contract of annuity between decedent and a
life insurance company be adjudged void and be canceled and set aside
and that the plaintiffs recover from defendant the amount paid by decedent
for the annuity with interest thereon less the amount of annuities paid
with interest thereon, is an action praying for the relief that only a court
of equity can grant, and the plaintiffs are not entitled to a trial by jury,
as a matter of right, under the provisions of section 968 of the Code of
Civil Procedure.
Dykman v. JJ. 8. Life Ins. Co., 82 App. Div. 645, affirmed.
(Argued October 9, 1903; decided October 30, 1903.)
Appeal, by permission, from an order of the Appellate
Division of the Supreme Court in the second judicial depart-
ment, entered May 1, 1903, which affirmed an order of Special
Term denying a motion to strike the above-entitled action from
the Special Term calendar and to send it to be tried at a Trial
Term before a jury.
The nature of the action, the facts, so far as material, and
the question certified are stated in the opinion.
James C. Bergen and John E. Parsons for appellants.
The allegations of the complaint set forth an action for money
had and received ; therefore, the issues in this case are prop-
300 Dykman v. U. S. Life Ins. Co. [Oct,
Opinion of the Court, per Bartlett, J. [Vol. 176.
erly triable before a jury and not on the equity side of the
court. {King v. Van Vlek, 109 N. Y. 363 ; Place v. Hay-
ward, 117 K Y. 487; Everett v. ConUin, 90 N. Y. 645 ;
Roberts v. Ely, 113 N. Y. 128 ; Chapman v. Forbes, 123 N.
Y. 537; Hale v. 0. Nat. Bank, 49 K Y. 631; Cope v.
Wheeler, 41 N. Y. 303 ; Degraw v. Elmore, 50 N. Y. 1.)
The complaint alleges facts constituting this an action at law
for recovery of money had and received, the right to Which
recovery arises ex cequo et bono, and to that extent is an equi-
table right. It is in just such cases that either party may
demand a trial by jury. (12 Ency. of PI. & Pr. 264 ; Hudson
v. Caryl, 44 N. Y. 553 ; Dcwis v. Morris, 36 N. Y. 569 ;
Bradley v. Aldrich, 40 N. Y. 510 ; Stevens v. Mayor, etc.,
84 N. Y. 296.)
C/iarles E. Patterson and Donald B. Toucey for respond-
ent. Plaintiffs have no right to have this case tried before a
jury. (1 Story's Eq. Juris. § 59 ; City of Rochester v. Mayor,
9 Civ. Pro. Kep. 226 ; Wright v. Nostrand, 94 N. Y. 31 ;
Moss v. Burnham, 50 App. Div. 301 ; Bell v. Merrifield,
109 N. Y. 202 ; Krenzle v. Miller, 32 K Y. S. K. 984 ; Mac-
iellar v. Rogers, 109 N. Y. 468; Van Rensselaer v. Van
Rensselaer, 113 K Y. 207; Cogswell v. N. Y.,N. H. cfe //.
R. R. Co., 105 K Y. 319 ; Lynch v. M. El. Ry. Co., 129
K. Y. 274.)
Bartlett, J. The learned connsel for the plaintiff insists
that the complaint sets forth an action for money had and
received and that the issues are triable by a jury.
A carefully drawn complaint, covering nine printed pages,
sets forth in substance that plaintiff's testator, within five
months of his death, purchased an annuity of the defendant
when he had long been addicted to habits of gross intemper-
ance, which led to a diseased, disordered, irrational and
unsound mental condition, of which defendant had due
notice.
That plaintiff's testator paid $100,000 for an annuity of
1903.] South Buffalo Ry. Co. v. Kirkover. 301
N. Y. Rep.] Statement of case.
$7,640.00 during life, payable in quarterly payments of
$1,910; that one quarterly payment was paid and before
another became due the testator died.
There are other allegations in the complaint that need not
be referred to at this time.
The prayer of the complaint is, in substance :
1. That the contract of annuity be adjudged void and that
the same be canceled and set aside.
2. That the defendant be adjudged to pay to the plaintiffs
the sum of $100,000.00, with interest, less any sum, with
interest, that defendant has paid out under the contract.
3. Prayer for costs.
This is an action in equity praying for relief that only a
court of chancery can grant.
The learned Appellate Division has certified to us this
question :
" Are the plaintiffs in this action, upon the pleadings herein,
entitled as a matter of right to a trial by jury, under the pro-
visions of section 968 of the Code of Civil Procedure? "
The question is answered in the negative.
The order appealed from should be affirmed, with costs.
Parker, Ch. J., O'Brien, Martin, Vann and Werner, JJ.,
concur ; Cullen, J., not sitting.
Order affirmed.
The South Buffalo Kailway Company, Appellant, v.
Henry D. Kirkover et al., Respondents.
Railroads — Eminent Domain — Measure op Damages Where a
Portion op a Tract op Land Is Taken. Where land is acquired by a
railroad company without the consent of the owner, he is entitled to
recover the market value of the premises actually taken and also any
damages resulting to the residue, including those which will be sustained
by reason of the use to which the portion taken is to be put by the
company.
South Buffalo By. Co. v. Kirkover, 86 App. Div. 65, affirmed.
(Argued October 5, 1903; decided October 30, 1903.)
302 South Buffalo Rr. Co. v. Kirkover. [Oct.,
Points of counsel. [Vol. 176.
Appeal from an order of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
July 23, 1903, which affirmed an order of Special Term
confirming the report of commissioners in condemnation
proceedings.
This is a proceeding brought by the railroad company
under the Condemnation Law to acquire for its corporate
purposes nearly eight acres of land owned by the defendants.
Commissioners were duly appointed, who awarded the sum of
$10,500 for the land actually taken and the sum of $41,500 as
compensation for the damages " to the remainder of the parcel
of land owned by said defendants, out of which the lands and
premises described in said petition and order are taken,
* * * caused by the taking of the land described in this
proceeding, and the use thereof for railroad purposes iq the
manner and to the extent shown by the evidence and the pro-
ceeding aforesaid. * * * "
The Special Term confirmed this report and the Appellate
Division affirmed the order of the Special Term to that
effect, with a divided court. From the order entered on this
determination the present appeal is taken.
The land sought to be acquired in this proceeding is a part
of about sixty-nine acres of vacant land situated in the south-
erly portion of the city of Buffalo.
John G. Milhurn and Frank Rurmey for appellant. The
commissioners adopted an erroneous rule or principle in
awarding compensation for alleged damages to the portion of
the tract not taken resulting from the operation of the rail-
road upon the part taken, and the obstruction to the view due
to the embankment on which the railroad is built. (L. 1850,
ch. 140, § 16 ; Code Civ. Pro. § 3370 ; A. B. N. Co. v. IT.
Y. R. R. R. Co., 129 K Y. 272; Bohm v. M. R R. Co.,
129 K Y. 585; A. iT. R. R. Co. v. Lansing, 16 Barb. 68;
Matter of U., etc., R. R. Co., 56 Barb. 464 ; Matter of iK
Y. R R. R. Co., 36 Hun, 427; Henderson v. IT. Y. C R.
R. Co., 78 N. Y. 423 ; Newman v. M. R R. Co., 118 N. Y.
1903.] South Buffalo Ry. Co. v. Kirkoveb. 303
N. Y. Rep ] Opinion of the Court, per Bartlett. J.
618 ; Radclifv. Mayor, etc., 4 N. Y. 195 ; Bellinger v. R.
R. Co., 23 N. Y. 48 ; TJline v. R. R. Co., 101 N. Y. 98 ;
Moyer v. R. R. Co., 88 N". Y. 351.)
Wilson S. Bissell and James McC Mitchell for respond-
ents. The award of the commissioners was proper and should
be confirmed. {Matter of P. P. A C I. R. R. Co., 85 N.
Y. 489; Perkins v. State of, New York, 113 K Y. 660;
Matter of Thompson, 121 N. Y. 277 ; 127 K Y. 463 ; Syra-
cuse v. Stacey, 45 App. Div. 249 ; M. Ry. Co. v. O* Sullivan,
6 App. Div. 571 ; Matter of Daly v. Smith, 18 App. Div.
194; Vil. of Port Henry Y.Kidder, 39 App. Div. 640;
Matter of Mayor, etc., 40 App. Div. 281 ; H. R., etc., R. R.
Co. v. Reynolds, 50 App. Div. 575 ; Matter of Grade Cross-
ing Comrs., 52 App. Div. 27; Matter of Grade Crossing
Comrs., 52 App. Div. 122; Matter of M. Ry. Co. v. Corn-
stock, 74 App. Div. 341.)
Bartlett, J. The single question of law presented by this
appeal is as to the rule which should govern the commission-
ers in awarding compensation for damages to the part of the
tract of land not taken.
The counsel for the appellant railroad company insists that
the proper rule as to damages, in addition to those allowed for
the land actually taken, may be thus stated : " Compensation
is only allowed for sucli damages to the residue as are caused
by the severance from it of the part taken, and (according to
some of the cases) in estimating such damages the grade or
elevation of the railroad may be taken into account as an ele-
ment of the severance."
The learned Appellate Division in its opinion states the
rule to be, that the owner is entitled to recover the market
value of the premises actually taken by such railroad com-
pany, and also any damages which resulted to the portion of
his premises not taken, not only by reason of the taking of
the property acquired by the railroad company, but also by
reason of the use to which the property was put by the
company.
304 South Buffalo Ry. Co. v. Kirkoveb. [Oct.,
Opinion of the Court, per Babtlett, J. [Vol. 176.
It has been frequently pointed out in judicial opinions that
there has been great conflict of authority in this state as to
which of the rules above stated was best calculated to do jus-
tice between the parties.
The early cases in the Supremo Court laid down the rule
insisted upon by appellant's counsel. (Troy & Boston R. R.
Co. v. Lee, 13 Barb. 169 ; Albany Northern R. R. Co. v.
Lansing, 16 Barb. 69 ; Canandaigua <& JW. F. R. R. Co. v.
Payne, 16 Barb. 273 ; Matter of Union Village v. Johnson-
viUe R. R. Co., 53 Barb. 457 ; Black River & M. R. R. Co.
v. Barnard, 9 Hun, 104 ; Albany & Susquehanna R. Co. v.
Dayton, 10 Abb. Prac. Kepts. [N. S.] 183.)
In Matter of Utica, C. & S. Valley R. R. Co. (56 Barb.
456) the General Term held that when land is taken for the
construction of a railroad without the consent of an owner,
compensation to be paid therefor is not limited to the actual
value of the land taken and the depreciation of the residue of
the lot from which it is taken by such separation ; but the
owner is entitled to recover also for any depreciation caused
by the use to which it is appropriated. This case was fol-
lowed in Matter of N. Y. C. dk H. R. R. R. Co. (15 Hun,
63) and Matter of N. Y., Lackawanna & Western Ry. Co.
(29 Hun, 1).
The tendency of judicial decisions in the Supreme Court
has been in favor of the more liberal rule adopted by the court
below in the case at bar.
Our attention has not been called to any case in this court
where the question was presented under the precise state of
facts disclosed by this record.
In Henderson v. N. Y. C. R. R. Co. (78 N. Y. 423) it
was held that in a proceeding by a railroad corporation to
acquire a right to lay its tracks in a street or highway, the fee
of which is in the owner of the adjoining land, the proper
compensation is : First. The full value of the land taken.
Second. The fair and adequate compensation for the injury
the owner has sustained and will sustain by the making of the
railroad over his land ; and for this purpose it is proper to
1903.] Sorrn Buffalo Ry. Co. v. Kirkover. 305
N. Y. Rep.] Opinion of the Court, per Baktlett, J.
ascertain and determine the effect the conversion of the street
into a railroad track will have upon the residue of the owner's
land.
In Newman v. Metropolitan Elevated Ry. Co. (118 N.
Y. 618), Judge Brown (p. 623) uses this language : " The
principle upon which compensation is to be made to the
owner of land taken by proceedings under the General Rail-
road Law has been frequently considered by the courts of this
state, and the rule is now established, Jirst, that such owner is
to receive the full value of the land taken, and, second, where
a part only of land is taken, a fair and adequate compensation
for the injury to the residue sustained, or to be sustained, by
the construction and operation of a railroad."
The case in which the learned judge wrote was one of
that large class of elevated railway cases, in the city of New
York, involving injury to the easements of light, air and
access, no land being taken.
In Bohm v. Metropolitan Elevated Ry. Co. (129 N. Y.
576), Judge Peckham uses this language : " Then as to the
land remaining, the question has been to some extent mooted
whether the company should pay for the injury caused to such
land by the mere taking of the property, or whether in case
the proposed use of the property taken should depreciate the
value of that which was not taken, such proposed use could
be regarded and the depreciation arising therefrom be awarded
as a part of the consequential damages suffered from the tak-
ing. I think the latter is the true rule." The learned judge
cites ffendtrsoti v. N. Y. C. R. R. Co. (78 N. Y. 423, 433) ;
Newman v. Metr. El. Ry. Co. (118 N. Y. 618); Matter of
Brooklyn Elevated R. R. Co. (55 Hun, 165, 167), adding :
"The question might be of great importance where there was
an injury to the remaining land, but if there has been no
injury, the inquiry as to the scope of the liability for dam-
ages is not material." This was also an elevated railroad
case, involving only the injury to easements and no land was
taken.
It may be true, as stated by appellant's counsel, that the
20
306 South Buffalo Ky. Co. v. Kirkovkr. [Oct,
Opinion of the Court, per Bartlett, J. [Vol. 176.
precise question now presented has never been passed upon
by this court. It is, however, equally true that the decisions
in the Supreme Court and in this court tend strongly to the
recognition of the more liberal rule.
Considering the principle involved, unembarrassed by legal
decisions, it is reasonable that where the state, in the exercise
of the right of eminent domain, sees fit to take the property
of the citizen without his consent, paying therefor such dam-
ages as are the result of the taking, the commissioners in the
condemnation proceedings should not only be permitted but
required to award the owner a sum that will fully indemnify
him as to those proximate and consequential damages flowing
from this act of sovereign power.
The exercise of the right of eminent domain is allowed
upon the theory that while the taking of property may greatly
inconvenience the individual owners affected, it is in the
interest and to promote the welfare of the general public.
This being so, there is no reason why the citizen, whose land
is taken in mvitum, should suffer any financial loss that may
be prevented by awarding him proximate and consequential
damages. It may well be that in every case there are remote
damages that the citizen, under the circumstances, must suffer.
It not infrequently happens that some extensive public
improvement, as the construction of a great reservoir in the
vicinity of a large city like New York, drives families from
old homesteads occupied for generations, and submerges the
entire property. It is apparent that in such cases no reason-
able and lawful rule of damages can fully compensate the land-
owners thus dispossessed.
In the case at bar we have the ordinary and usual situation,
where the commissioners have reported in favor of paying the
owner the value of the land taken, and the damage to the
balance by reason of the severance, and the use to which the
property taken is to be put by the railroad company.
It is insisted on behalf of the appellant that the commis-
sioners erroneously took into account as factors causing damage
the U6e to which the property was to be put ; that is, the
1903.] South Buffalo Ry. Co. v. Kirkovkr. 307
N. Y. Rep.] Opinion of the Court, per Bartlett, J.
operation thereon of a railroad, with its smoke, noise, dust
and cinders, and the embankment obstructions to the view.
It is also argued that the elevated railroad cases in the city
of New York are in a special category and not applicable to
the case at bar.
In most of the elevated railroad cases the city owned the
fee of the street, the railroad being erected therein by legisla-
tive grant, and the original question presented to this court
was, whether the injury suffered by the abutting owner to his
easements of light, air and access created a cause of action
against the railroad company.
It was held in the Story Case (90 X. Y. 122) that these
easements became at once appurtenant to the land, forming
an integral part of the estate and constituted property within
the meaning of the State Constitution (Art. 1, § 6), which pro-
hibits the taking of private property without just compensa-
tion. It therefore followed that in the trial of the elevated
railroad cases any evidence was competent tending to show
injury to these easements of light, air and access, as they were
property. A similar rule of evidence is applicable to the case
before us.
The difference between the elevated railroad cases and this
case is not material. In this case, as in the elevated railroad
cases, one of the questions is as to the damages inflicted upon
land not taken, and the inquiry is, to what extent does the use
of the railroad on the adjacent property taken, damage the
property, the fee of which remains in the defendants? This
property is the land and its appurtances. Any evidence
tending to legally establish the amount of this damage is
competent.
It is to be assumed that the commissioners appointed from
time to time in condemnation proceedings are intelligent and
competent men, anxious to do exact justice between the
parties. It may be further assumed that they will judiciously
discriminate between farm lands in the country and property
located within the limits of a city, upon which dwellings and
other structures may be ultimately erected. In the one case,
308 City of Buffalo v. D., L. & W. It. R. Co. [Oct.,
Statement of case. [Vol. 176.
under existing conditions, damages might be slight, while in
the other very substantial.
In this case it is pointed out in the opinion of the learned
Appellate Division that the average amount of damages to
the property not taken was $94,435.00, as fixed by nine wit-
nesses called by the defendants, but the commissioners found
the damages to be $41,500.00
Attention is also called to the fact in the opinion that the
average amount of damages fixed by plaintiffs witnesses was
much less than the award. It appears by the report of the
commissioners that on a number of days, by consent of coun-
sel, they personally inspected the premises involved in this
proceeding.
We are of opinion that the rule of damages adopted by the
commissioners was the proper one, and that the record discloses
no legal error.
The order and judgment appealed from should be affirmed,
with costs.
Parker, Ch. J., O'Brien, Martin, Vann, Cullen and
Werner, JJ., concur.
Order affirmed, with costs.
The City of Buffalo, Appellant, v. The Delaware, Lacka-
wanna and Western Railroad Company, Respondent.
Appeal — Power of Appellate Division to Reverse or Affirm
Wholly or Partly— Code Civ. Pro. § 1317. Where a judgment
rendered in an action at law or in equity consists of distinct parts so
separate and independent in form and nature as to be easily severed and
each is in fact a distinct adjudication, the Appellate Division, in the
exercise of a sound discretion, may upon appeal affirm the adjudication
not affected by error and reverse the adjudication which is affected by
error and grant a new trial as to that portion of the issues only, the
application of the rule depending upon the form and nature of the judg-
ment rendered rather than upon the forum of the action.
City of Buffalo v. D., L. &- W. li. R Co., 81 App. Dlv. 655, affirmed.
(Argued October 8, 1903; decided October 30, 1903.)
1903.] City of Buffalo v. D., L. & W. R. R. Co. 309
N. Y. Rep.] Opinion of the Court, per Vann, J.
Appeal, by permission, from an order of the Appellate
Division of the Supreme Court in the fourth judicial depart-
ment, entered March 26, 1903, which denied a motion to
amend a judgment of that court on appeal.
The nature of the action and the facts, so far as material,
are stated in the opinion.
Charles L. Feldman, Corporation Counsel {Edward L.
Jung of counsel), for appellant. The Appellate Division has
no power or authority to make the order it did make in this
case. (Code Civ. Pro. § 1317 ; Story v. JT. Y. & 1L R. R. R.
Co., 6 K Y. 85 ; Wohtenholme v. W. Mfg. Co., 64 N. Y. 272 ;
Qoodsell v. IP. U. Tel. Co., 109 N. Y. 147; N. B. Under-
writers v. Nat. Bank, 146 N. Y. 57; Alt man v. Ilyfeller,
152 N. Y. 498 ; Wilson v. M. O. Co., 170 N. Y. 542 ; Arthur
v. Griswold, 55 N. Y. 400 ; Pollett v. Long, 56 K. Y. 200 ;
Gray v. M. Ry. Co., 128 N. Y. 499 ; Freel v. Queens County,
154 N. Y. 661 ; Benedict v. Arnoux, 154 N. Y. 715 ; Matter
of Chapman, 162 N. Y. 456 ; Van Beuren v. Wotherspoon,
164 N. Y. 368.)
John (f. MUburn for respondent. The judgment of the
Appellate Division was proper and authorized in form. (Code
Civ. Pro. § 1317 ; Kelsey v. Western, 2 N. Y. 505.) '
Vann, J. This action was brought to procure a decree
that a strip of land fronting on Buffalo river in the city of
Buffalo, situated partly on the east and partly on the west side
of Main street, is a public street and to require the defendant
to remove certain obstructions therefrom. The action was in
equity and while but one decree was entered it consisted of
two adjudications resting on separate findings settling differ-
ent issues, each relating to a distinct piece of real estate, and
supported by evidence peculiar thereto. The first adjudica-
tion was that the parcel of land on the east side of Main
street is a public street of the city of Buffalo and the defend-
ant was required to remove all obstructions that it had placed
310 City of Buffalo v. D., L. & W. R. R. Co. [Oct.,
Opinion of the Court, per Vann, J. [Vol. 176.
thereon. The second adjudication was that the parcel of
land on the west side of Main street is not a public street
of said city but is the property of the defendant, and the
complaint was dismissed as to that parcel. The defendant
appealed from the first and the plaintiff from . the second
adjudication to the Appellate Division, which affirmed as to
the latter but reversed as to the former, and ordered a new
trial both on the law and the facts as to that branch of the
controversy only.
An application was thereupon made by the plaintiff request-
ing the Appellate Division to so modify its order as to grant
" a new trial of the whole action," and from the order deny-
ing said motion this appeal was taken, the following question
having been certified to us for decision : " Considering that
the river frontage west of Main Street involved different
issues from the river frontage ea6t of Main Street and that
there was a separate adjudication in one and the same judg-
ment by the trial court as to each locality, from each of which
a separate appeal was .taken ; and the Appellate Division
having on the appeal of the plaintiff from the adjudication
as to the river front west of Main Street affirmed the
judgment of the lower court ; and having on the appeal of
the defendant from the adjudication as to the river front
east of Main Street reversed the judgment of the lower
court upon the law and the facts and granted a new trial,
had the court power to make the order or judgment it did
make in conformity with its actual determination of the
separate appeals ? "
The plaintiff claims that the Appellate Division had no
power to grant a new trial as to part of the issues ouly and
that it was its duty to so modify its order as to grant a new
trial as to all the issues.
The defendant claims that in an action in equity affecting
separate parcels of land, where by distinct adjudications in the
same decree the plaintiff succeeds as to one parcel and the
defendant as to the other and cross-appeals are taken, the
Appellate Division has power to affirm as to the one and
1903.] City of Buffalo v. D., L. & W. R. E. Co. 31 1
N. Y. Hep.] Opinion of the Court, per Vanx, J.
reverse as to the other and to grant a new trial as to such
issues only as are affected by the reversal.
When a judgment consists of a single adjudication, such as
the recovery of a gross sum of money, even if it is founded
upon several causes of action, the rule has long prevailed that
the appellate branch of the Supreme Court cannot. affirm as
to a part and reverse with a new trial as to the remainder
only, but the reversal must include the entire judgment and
the new trial extend to all the issues. {Altman v. Hofeller^
152 N. Y. 498, and cases therein cited; Van Bokkelin v.
Ingersoll, 5 Wend. 315, 340.)
As judgments in actions at law are usually for a gross sum
of money, or for the possession of a single piece of property,
the rule has frequently been stated as if it applied only to
actions on the law side of the court, with entire accuracy as to
the cases to which the rule was applied, but without strict accu-
racy as to the small number of actions at law in which distinct
and separate adjudications are made. In other words, the
exception to the general rule lias not usually been mentioned in
the decision of those cases to which it did not apply.
Where a judgment consists of distinct parts so separate and
independent in form and nature as to be easily severed, and
each is, in fact, a distinct adjudication, the Supreme Court
may upon appeal affirm the adjudication not affected by error
and reverse the adjudication which is affected by error and
grant a new trial as to that portion of the issues only. This
rule has frequently been stated as if it were confined to
actions in equity, to which, indeed, it mainly applies, because
there are but few judgments except those rendered by courts
of equity which consist of distinct and independent adjudica-
tions. We think the rule to be applied depends upon the
form and nature of the judgment rendered rather than upon
the forum of the action and the statute regulating appeals,
which simply codifies the practice as it had long prevailed, as
well as promptness in the administration of justice, invite this
construction. (Code Civ. Proc. § 1317.) Power to "reverse
or affirm, wholly or partly," implies that part may be affirmed
312 City of Buffalo v. D., L. & W. R. R Co. [Oct.,
Opinion of the Court, per Vann, J. [Vol. 176.
and part reversed, because the part not reversed must be
affirmed. Thus, if in an action of ejectment for separate par-
cels of land, each depending upon an independent chain of
title, there is a verdict for the plaintiff as to one and for the
defendant as to the other, and each party appeals from the
separate adjudication against himself, we see no reason why
it is not within the power of the court to affirm as to one and
reverse as to the other. So when a special verdict by a jury,
or separate findings by the court or referee settle the facts as
to independent causes of action and distinct adjudications fol-
low in the same judgment, a retrial of all the issues is not
required on account of an error affecting one adjudication only.
Why should a cause of action, determined without error, be
tried over again because another cause of action, joined with
it in the complaint, but severed from it in the judgment,
requires a retrial ? Why should time and money be expended
upon a trial which is unnecessary ? If the judgment is entire,
even if it might have been otherwise, it cannot be so severed on
the decision of an appeal as to grant a new trial of part of the
issues only without confusion and danger. If, on the other
hand, it is comprised of distinct and independent adjudications,
we think the Appellate Division has the power to sustain the
adjudication which correctly disposes of the issues to which it
is confined and allow it to stand, while as to the issues which
relate wholly to a separate adjudication, infected with error, a
new trial is granted. Inconsistent judgments cannot arise from
such a course, because the determination of the one contro-
versy does not involve the other. We also think that while
the Appellate Division has this power, it is not obliged to
exercise it, but the subject rests in its sound discretion to sever
the issues or not, and to award a new trial as to all, or a part
only, accordingly. ( Van Bokkelin v. Ingersoll, 5 Wend.
316, 340 ; Smith v. Jansen, 8 Johns. Ill, 116 ; Brads/iaw v.
Callaghan, 8 Johns. 558, 566; Altman v. Ilqfeller, supra;
Wilson v. Mechanical Orguinette Co., 170 N. Y. 542, 552 ;
Gray v. Manhattan Railway Co., 128 N. Y. 499, 509 ; Story
v. N. T. & H. R. R. Co., 6 N. Y. 85, 89, 91 ; Frederick v.
1903.] Watertown Carriage Co. v. Hall. 313
K. Y. Rep.] Statement of case.
Lookup, 4 Bnrr. 2018, 2022.) The subject was so thoroughly
considered in the recent case of Altman v. HofeUer that
further discussion is unnecessary.
The application of the rule to the case in hand requires us
to affirm the order appealed from, with costs, and to answer
the question certified in the affirmative.
O'Brien, Bartlett, Martin, Cullen and Werner, JJ.,
concur; Parker, Ch. J., absent.
Order affirmed.
Watertown Carriage Company, Respondent, v. Edwin L.
IIall, Appellant.
Bankruptcy— Discharge in, Not a Defense, or Bar, to Action
for Embezzlement and Misappropriation of Funds — Demurrer to
Akswbr Setting up Same as a Defense. Where the complaint in an
action of conversion alleges that the defendant did wrongfully and fraud-
ulently embezzle and misappropriate plaintiff's money, the legal import
thereof is that defendant became possessed of the money in a fiduciary
capacity, and, hence, his liability thereunder is a liability expressly
excepted, by section 17 of the Bankruptcy Law of 1898, from debts
released by a discharge in bankruptcy, and defendant's answer setting up
his discharge in bankruptcy as a defense, or bar, to the action is demur-
rable as insufficient in law upon the face thereof.
Watertown Carriage Co. v. Hall, 75 App. Div. 201, affirmed.
(Argued October 14, 1903; decided October 80, 1903.)
Appeal, by permission, from an order of the Appellate
Division of the Supreme Court in the third judicial depart-
ment, entered September 24, 1902, which affirmed an inter-
locutory judgment of Special Term sustaining a demurrer to
the complaint.
The nature of the action, the facts, so far as material, and
the question certified, are stated in the opinion.
C. 27". Sturges and WiUard J. Mimr for appellant. The
question certified is sufficient to enable this court to determine
314 Watertown Carriaok Co. v. IIall. [Oct.,
Opinion of the Court, per O'Brien, J. [Vol. 176.
the validity of the judgment from which the appeal is taken.
{Baxter v. McDonnell, 154 N. Y. 432; Schenck v. Barnes,
156 N. Y. 316; Blaschko v. Wurster, 156 N. Y. 437.) The
defense of the discharge in bankruptcy is sufficient in law.
(Lambert v. People, 6 Abb. [N. C] 190 ; Matter of Rhutassel,
2 Am. Bank. Reg. 697 ; 2for.se v. Kaufman, 7 Am. Bank.
Reg. 549; Gee v. Gee, 7 Am. Bank. Reg. 500; Bracken v.
Mil tier, 5 Am. Bank. Reg. 23 ; Perkins v. Smith, 116 N. Y.
441 ; flennequin v. Clews, 77 X. Y. 427 ; Lawrence v. //<//•-
rinyton, 122 N. Y. 408; Mulock v. Byrnes, 129 N. Y. 23;
Palmer v. Ilussey, 119 U. S. 96; xY<?5& v. Hammond, 129
U. S. 65 ; Burnham v. Pidcock, 58 App. Div. 273 ; Dimock
v. i?. tf. Cb.f 117 U. S. 559.)
Joseph Nellis and Levi II. Brown for respondent. The
question certified has no pertinency to any question involved
in the decision and judgment appealed from, and, hence, pre-
sents no question which this court will review or determine.
(Steinway v. Beniette, 167 N. Y. 498 ; Matter of Davits,
168 N. Y. 89 ; Schenelc v. Barnes, 156 N. Y. 316 ; Matter of
Coatsworth, 160 N. Y. 114; Matter of Manninyy 139 N. Y.
446; Matter of Robinson, 160 N. Y. 448; Blaschko v.
Wurster, 156 N. Y. 437; Toimisend v. Bell, 167 N. Y. 462;
Matter of Landy, 148 N. Y. 403 ; Caponiyri v. Altieri, 164
N. Y. 476.) The cause of action stated in the complaint is
exempt from discharge under the Bankrupt Law. (Maillard
v. Lawrence, 16 How. [U. S.] 250 ; The Abotsford, 98 U. S.
440 ; 6 Am. Bank. Reg. 657 ; Uhlman v. Ins. Co., 109 N. Y.
426 ; Moffatt v. Fulton, 132 N. Y. 507 ; Bank v. Peters, 123
N. Y. 272 ; Baker v. Bank, 100 N. Y. 31 ; Burhans v. Cary,
4 Sandf. 707 ; White v. Williams, 5 Den. 269 ; 21 Wall. 368 ;
Schudder v. Shields, 17 How. Pr. 420 ; Taylor v. Plummer,
3 M. & S. 562.)
O'Brien, J. The complaint in this action alleged that the
plaintiff, upon the day specified, was the owner and entitled
to the immediate possession of the sum of sixty-five dollars in
1903.] Watertown Carriage Co. v. Hall. 315
N. Y. Rep.] Opinion of the Court, per O'Brien, J.
money, consisting of bills, bank notes and currency, but in
what particular denominations the plaintiff was unable to
more particularly state. That on the day named, prior to the
commencement of the action, the defendant did fraudulently
and unlawfully convert, misappropriate and embezzle said
money ; that before the commencement of the action the
plaintiff duly demanded the aforesaid sum of money of the
defendant, but the defendant refused and still refuses to
deliver the same to the plaintiff, and the plaintiff was damaged
in the sum of sixty-five dollars, with interest from the day of
said conversion, misappropriation and embezzlement. The
defendant, among other matters, interposed an answer as a
distinct and separate defense to the cause of action stated in
the complaint and as a bar to the same a discharge in bank-
ruptcy. To this separate defense the plaintiff demurred, on
the ground that it was insufficient in law upon the face
thereof, and this demurrer has been sustained by the courts
below.
The only question, therefore, presented by this appeal is
whether a discharge in bankruptcy is a good defense to a
cause of action such as is stated in the complaint herein.
There would, I think, be very little difficulty in disposing of
this question except for numerous decisions of the courts
giving construction to corresponding provisions of the bank-
rupt acts of 1841 and 1867. These decisions have been elab-
orately reviewed and discussed by counsel and the difference
between these statutes and the present Bankrupt Law pointed
out. In the view that we take of the case, it is not necessary
to refer to these decisions, since in our opinion they are not
controlling, if at all applicable, upon the question now
presented.
The order sustaining the demurrer was interlocutory and
hence was not reviewable in this court without a certificate
from the court below. We have that certificate in the record
and the question certified is in these words : " Is a discharge
in bankruptcy properly pleaded as a defense to any cause of
action alleged in a complaint? " Of course a cause of action
316 Watertown Carriage Co. v. Hall. [Oct.,
Opinion of the Court, per O'Brien, J. [Vol. 176.
may be stated in a complaint to which a discharge in bank-
ruptcy would be a good defense, but that is an abstract ques-
tion that is not pertinent to any issue or question in this case,
and if we are to take the question literally and according to
the clear and broad language employed, there would be noth-
ing in the record that this court has the power to review and
the appeal should be dismissed. But, doubtless, it was the
intention of the parties and the purpose of the learned court
below to have the question arising upon the demurrer finally
passed upon by this court. We will, therefore, assume that
what was intended by the question was, not whether a dis-
charge in bankruptcy is a good "defense to any cause of
action" but whether it is a good defense to the cause of
action stated in the complaint in this action. In other words,
does the defendant's discharge in bankruptcy protect him in
this action from liability resulting from his act in " fraudu-
lently and unlawfully converting, misappropriating and embez-
zling " the sixty-five dollars of the plaintiffs money ?
The answer to that question is to be found in the plain
language of the present Bankrupt Law enacted in 1898, as
follows : " A discharge in bankruptcy shall release a bankrupt
from all of his ptovable debts, except such as (1) are due as a
tax levied by the United States, the state, county, district, or
municipality in which he resides ; (2) are judgments in actions
for frauds, or obtaining property by false pretenses or false
representations, or for willful and malicious injuries to the
person or property of another ; (3) have not been duly sched-
uled in time for proof and allowance, with the name of the
creditor, if known to the bankrupt, unless such creditor had
notice or actual knowledge of the proceedings in bankruptcy ;
or (4) were created by his fraud, embezzlement, misappro-
priation or defalcation while acting as an officer or in any
fiduciary capacity."
The cause of action stated in the complaint i6 plainly
excepted from the operation of the discharge as a release of
the defendant from liability. It does release him from cer-
tain debts and obligations, but not from liability for the cause
1903.] Smith v. Chesebrough. % 317
X. Y. Rep.] Statement of case.
of action stated in the complaint, and, hence, the answer
setting up the discharge as a defense was open to demurrer,
and so it has been held since the enactment of the present
Bankrupt Law. (Fret/ v. Torrey, 70 App. Div. 160 ; affd. on
opinion below, 175 N. Y. 501 ; Crawford v. Burke, 201 111.
581.) These views sufficiently answer the question certified
as we have construed it. The charge in the complaint is that
the defendant did wrongfully and fraudulently embezzle and
misappropriate the plaintiffs money, and the legal import of
these words is that he became possessed of it in a fiduciary
capacity, and so the order appealed from should be affirmed,
with costs.
Parker, Ch. J., Gray, Bartlett, Haight, Martin and
Vann, J J., concur.
Order affirmed.
Ellsworth C. Smith, Respondent, v. Amos S. Chesebrough
et ah, Respondents, and William Cranstoun, as Executor
of and Trustee under the Will of Nicholas H. Chese-
brough, Deceased, Appellant.
Will— When Void Intermediate Trust, Created by Codicil,
May Be Expunged Without Changing Testator's Plan for Disposi-
tion or His Property, the Will Must Be Sustained. Where a testa-
tor devised and bequeathed his residuary estate to his executors in trust
to pay the income thereof to his wife during her lifetime, with power to
sell his real estate at any time during the trust at their discretion, and
after her death to transfer the residuary estate to the designated trustees
of a permanent trust, and thereafter, after the death of his wife, testator
executed a codicil to his will, revoking the provisions therein contained
for the benefit of his wife, and directing his executors to hold the residuary
estate and invest and reinvest the income thereof until the expiration of
two years after his death and then to transfer the residuary estate and the
accumulated income thereof to the trustees of the permanent trust,
neither the will and the provisions thereof granting the power of sale, nor
the provisions creating the permanent trust, are revoked or rendered
invalid by the codicil, notwithstanding the direction to hold and invest
both principal and income of the residuary estate for the definite period
of two years after testator's death before transferring the same to the per-
manent trustees constituted an unlawful suspension of the power of
alienation and provided for the unlawful accumulation of income in vio-
318 . Smith v. Chesebrough. [Oct.,
Statement of case. [Vol. 176.
lation of the statute (Real Property Law, §§ 32 and 51; L. 1896, ch. 547),
since the invalid provisions of the codicil affected neither the power of
sale nor the existence of the permanent trust, but only the time of the
inception of the trust, and such provisions can be expunged without mak-
ing any change in the testator's plan for the disposition of his residuary
estate, except that the trustees of the permanent trust take possession
thereof upon the testator's death instead of two years later.
Smith v. Chesebrough, 82 App. Div. 578, reversed.
(Argued October 6, 1903; decided October 30, 1908.)
Appeal, by permission, from an order of the Appellate
Division of the Supreme Court in the second judicial depart-
ment, entered May 1, 1903, which affirmed an interlocutory
judgment in favor of plaintiff and defendants, respondents,
entered upon a decision of the court on trial at Special Term.
The following are the questions certified : " I. Was not a
valid power to sell the real property described in the com-
plaint given to appellant by his testator, Nicholas H.
Chesebrough ?
"II. Did said Chesebrough's testamentary disposition of
said real property illegally suspend the power of alienation
thereof ?
" III. Should not said Chesebrough's invalid direction to
accumulate the rents, interest and income be eliminated by
the court and the rest of his testamentary plan upheld ? "
The nature of the action and the facts, so far as material,
are stated in the opinion.
P. Ilarwood Venum for appellant. The second question,
to wit : " Did said Chesebrough's testamentary disposition of
said real property illegally suspend the power of alienation
thereof ?" should be answered in the negative. (Henderson
v. Henderson, 113 X. Y. 1.) If the power of sale was not
revoked by the codicil and if the testator intended that it
should be exercised, and the condition of his estate required
its exercise, then the real estate was thereby equitably con-
verted even if the power was not in terms imperative.
(Fraser v. Trustees, 124 N. Y. 479 ; Salisbury v. Sladt, 160
N. Y. 278, 2S9 ; Asehe v. Awhe, 113 N. Y. 232 ; DdafieU v.
1903.] Smith v. Chesebrouoh. 319
N. Y. Rep.] Points of counsel.
Barlow, 107 N. Y. 535 ; Zent v. Howard, 89 N. T. 169 ;
Powers v. Cassidy, 79 N. Y. 602 ; Dodge v. Pond, 23 N. Y.
69 ; Wurt v. Pa^5 4 C. E. Green, 375 ; Orane v. Holies, 4
Dick. 373 ; Roy v. J/bor*, 2 Dick. 356.) Even if the power
of sale given by the will was revoked by the codicil the
testator's testamentary scheme does not illegally suspend
the power of alienation, as the estate given to the orphan
asylum trustees was vested and, therefore, alienable. {Stein-
way v. Steinway, 163 N. Y. 163 ; Murphy v. Whitney,
140 N. Y. 541; Smith v. Edwards, 88 N. Y. 102;
Selden v. Pr ingle, 17 Barb. 465 ; Warner v. Durant, 76
N. Y. 133 ; Campbell v. tffojfea, 142 N. Y. 23 ; Levy v. Z<?vy,
79 Hun, 290 ; Kilpatrick v. Barron, 125 N. Y. 751.) The
third question, viz. : " Should not said Chesebrough's invalid
direction to accumulate the rents, interest and income be
eliminated by the court and the rest of his testamentary plan
upheld?" should be answered in the affirmative, because
although a valid will is necessary, as claimed by the plaintiff,
to withhold the real estate of a decedent from his heirs at
law, yet when a will has been duly executed and the testator's
object is worthy, it is the duty of the court to sustain the will
as far as possible and to cut out invalid provisions. {Kane v.
Gott, 24 Wend. 641 ; Henderson v. Henderson, 113 N. Y. 1 ;
Greene v. G renin, 125 N. Y. 506 ; Kalish v. Kalish, 166 N.
Y. 368, 375 ; HascaU v. King, 162 N. Y. 134.) The gift to
the persons named in the testator's will for the purpose of
founding an orphan asylum is not only valid in New Jersey,
but also in New York, such a gift being no longer invalid in
this 6tate, because the beneficiaries of the charity are indefinite,
or because a trust in perpetuity is created. (L. 1893, ch. 701 ;
Allen v. Stevens, 161 N. Y. 122 ; Cross v. If. S. T. Co., 131
N. Y. 330; Hope v. Brewer, 136 N. Y. 126.*)
Paul Eugene Jones for plaintiff, respondent. The rights
of plaintiff are to be determined as of the day of the death of
Nicholas II. Chesebrough. On that day the title to his New
York real estate vested in his heirs at law, and the possession
320 Smith v. Chesebrough. [Oct.,
Opinion of the Court, per Werneii, J. [Vol/ 176.
of that real estate can be withheld from the heirs only by one
claiming under a valid trust, power in trust or a remainder
validly limited. (Tilden v. Green, 130 N. Y. 29 ; Dammert
v. Osborn, 140 N. Y. 30 ; Haynes v. S/terman, 117 N. Y. 433 ;
Cochrane v. JSchell, 140 N. Y. 516.) Even if the trust, upon
which the trustees of the Chesebrough Protestant Orphan
Asylum are to hold the New York real estate when it vests
in their possession at the end of the term of two years, is
valid, still, if the power of alienation were illegally suspended
prior to that time, then the future estate for charitable pur-
poses was " void in its creation." (5 Am. & Eng. Ency. of
Law [2d ed.], 902 ; 1 Fearne on Remainders [4th Am. ed.],
425 ; Warren v. Durant, 76 N. Y. 133 ; Tilden v. Green,
130 N. Y. 29 ; Cruikshank v. Home for Friendless, 113 N.
Y. 337 ; Urbauer v. Cranstoun, 60 App. Div. 51 ; Booth v.
Baptist Church, 126 N. Y. 215 ; Garvey v. McDevitt, 72
N. Y. 556 ; Kilpatrick v. Barron, 125 N. Y. 751 ; 2 Perry
on Trusts [5th ed.], § 783 ; Kirsch v. Tozier, 143 N. Y. 390;
Waterman v. Webster, 108 N. Y. 157 ; Dammert v. Osbom,
140 N. Y. 30.) The only gift for the maintenance of the
orphan asylum was of a fund to be illegally accumulated, and
the gift falls with the direction for illegal accumulation.
{Rice v. Barrett, 102 N. Y. 161.)
Werner, J. This is an action for the partition of certain
rear estate described in the complaint, situate in the counties
of New York and Richmond in this state, and of which Dr.
Nicholas II. Chesebrough, a resident of the state of New Jer-
sey, died seized on April 6th, 1899. The plaintiff and certain
of the defendants, who are collateral relatives and heirs at
law of the late Dr. Chesebrough, assert ownership to this real
estate by reason of the alleged partial intestacy of the latter,
while the defendant Cranstoun and others claim title thereto as
trustees under his will and codicil, upon the construction of
which the issue depends.
Dr. Chesebrough's will was executed in the state of New
Jersey on the 23rd day of October, 1897. It first provided
19Q3.] Smith v. Chesebrough. 321
N. Y. Rep.] Opinion of the Court, per Werner, J.
for the payment of bis debts and funeral expenses and then
for certain specific legacies to relatives and various institutions.
The residue of the estate be devised to his executors and to
the survivor of them, in trust to hold the same, to collect the
rents, income and interest therefrom, and to pay them over
to the wife of the testator during her life. The executors
were also given a power of sale, with discretion as to the time
of its execution, and were directed to invest the proceeds of
sales, and the interest and income therefrom to pay to the wife
during her life.
The foregoing devise to the executors was limited upon the
further trust that upon the death of the testator's wife, the
residue of the estate and all moneys realized from the invest-
ment of the same then remaining, be conveyed and paid over
to six designated trustees who were directed to found and
erect in the town of Summit, in the state of New Jersey, an
institution to be known as "The Chesebrough Protestant
Orphan Asylum." The specific directions which relate to the
establishment and execution of this ultimate trust are not
material to this discussion, but it may be stated in passing that
they are concededly valid under the laws of New Jersey, and
would be valid in this state if they were to be executed here.
(L. 1893, ch. 701; Allen v. Stevens, 161 N. Y. 122.)
In February, 1899, the testator executed a codicil in which
he made certain changes in specific bequests, revoked the pro-
vision for his wife, who had died after the execution of the
will, and then directed his surviving executor to invest the
net rents, interest and income to be collected by him in safe
securities or to deposit the 6ame in bank so as to draw interest
until the expiration of two years after testator's decease, and
at that time, instead of after the death of testator's wife, " to
assign, transfer, convey and pay over " the residue of the estate
and all moneys realized from the investment of the same, or
of the rents, issues and income thereof, to the six designated
trustees for the purposes of the ultimate trust above referred
to. In all other respects the original will was ratified and
confirmed.
21
322 Smith v. Chesebrough. [Oct.,
Opinion of the Court, per Werner, J. [Vol. 176.
The courts below have held that the power of 6ale given by
the will was revoked by the codicil, and that the direction to
the executor in the latter instrument to hold and invest both
principal and income for a definite period of two years after
testator's death before transferring the same to the ultimate
trustees constituted an unlawful suspension of the power of
alienation under section 32 of the Real Property Law, which
invalidated the will and vested the title to the premises
described in the complaint in the plaintiff and the other heirs
at law of the testator.
We are unable to concur in that view of the case. While
the codicil does direct the surviving executor to hold and
invest both principal and income of the estate for a definite
period fixed by years instead of lives, and does, therefore,
unlawfully suspend the power of alienation and provide for
the unlawful accumulation of income (Sees. 32 and 51, Heal
Property Law), it does not follow that the will must fail alto-
gether. If the invalid parts of the codicil can be expunged
without essentially changing or destroying the testator's gen-
eral testamentary scheme, the valid parts of the will should
be upheld under the rule applied by this court in the case of
Kalish v. Kalish (166 N. Y. 377) and in many other cases
there cited. In the Kalish case we said : " It is axiomatic
that courts cannot make new wills for testators who have
failed to make valid wills for themselves. While recognizing
the force of this truth, courts have from the earliest times
been compelled to choose between the alternatives of setting
aside certain wills altogether, or of cutting out 6itnply their
void provisions. This necessity has led to the rule which is
now firmly established in this state, that when the several
parts of a will are so intermingled or interdependent that the
bad cannot be separated from the good, the will must fail
altogether ; but when it is possible to cut out the invalid pro-
visions, so as to leave intact the parts that are valid, and to
preserve the general plan of the testator, such a construction
will be adopted as will prevent intestacy, either partial or total,
as the case may be."
1903.] Smith v. Chesebrougii. 323
N. Y. Rep.] Opinion of the Court, per Werner, J.
A brief analysis of the will and codicil before us will suf-
fice to disclose the peculiar application of this general rule to
the base at bar. In the original will there were, first, the
specific legacies to various persons and institutions ; second,
the life estate of the testator's wife ; third, the ultimate trust
in the six named trustees for the orpham asylum to be founded.
The only relation that the life estate and the ultimate trust
bore to each other was that the execution of the latter was to
await the termination of the former. The power of sale,
although related to each of these estates, is not dependent
upon either of them. The direction to sell is peremptory,
but the time of its execution is discretionary, so that it clearly
survived the life estate. The testamentary scheme of the
original will was, therefore, indisputably valid.
The only changes sought to be effected by the codicil were,
first, the elimination of the life estate, the occasion for which
had passed with the death of the testator's wife, and, second,
the postponement until two years after the testator's death of
the physical transfer of the residuary estate and its accumula-
tions to the ultimate trustees. Under the original will the
estate devised to the ultimate trustees was a vested remainder,
the possession and enjoyment of which depended upon the
duration of the life estate of the testator's wife. The ulti-
mate trust was not revoked by the codicil, and the nature of
the estate devised to the ultimate trustees was not changed,
but the testator made an attempt to postpone the enjoyment
thereof which was in contravention of the statute and, there-
fore, void. By taking out of the codicil the invalid provision
for postponement, the only change in the testator's plan for
the disposition of his residuary estate is that the physical
possession of the remainder is accelerated so as to take effect
upon the testator's death instead of two years later. In all
other respects the testamentary scheme is not only essentially
but literally preserved. By expunging the invalid part of the
codicil the testator's partial intestacy is avoided and the real
substance of his will is effectuated in its entirety.
The case of Garvey v. MeDevitt (72 X. Y. 556), relied
324 Matter of Torge v. Vil. of Salamanca. [Oct.,
Statement of case. [Vol. 176.
upon by the respondents, seems to us clearly distinguishable
from the case at bar. In the Garvey case the trust was held
to have been void in its creation as it could not have been
valid without creating an unlawful suspension of the power of
alienation during the trust term of four years. In the case at
bar we have a trust valid in its inception and remaining so
after the excision of the invalid directions in the codicil.
The first, third and fourth questions certified to us are
answered categorically in the affirmative. The second certi-
fied question is answered in the affirmative as qualified and
explained in the opinion. These answers require a reversal
of the order and interlocutory judgment appealed from, the
dismissal of the complaint, with costs, and final judgment for
the appellant in accordance with the foregoing views, with
costs in all courts.
Parker, Ch. J., O'Brien, Bartlett, Martin, Vann and
Cullen, JJ., concur.
Order and judgment reversed, etc.
In the Matter of the Claim of Caroline Torqe, Appellant, v.
The Village of Salamanca, Respondent.
1. Streets — Change op Grade — Proceedings for Damages
Caused Thereby — Construction op Statutes Relating Thereto.
The statute (L. 1883, ch. 113, as amd. by L. 1884, ch. 281, and L. 1894,
ch. 172) providing that " whenever the grade of any street * * * in
any incorporated village shall be changed so as to injure or damage the
buildings or real property adjoining such highway, the owners thereof
may apply to the Supreme Court for the appointment of three commis-
sioners to ascertain and determine their damages, which damages shall be
a charge upon the village * * * chargeable with the maintenance of
the street * * * so altered or changed," was not superseded or repealed
by the provisions of the Village Law (L. 1897, ch. 414, § 159, and § 342,
subd. 4), providing for the assessment and payment of damages when the
grade of a street shall be changed by the authorities of a village having
the exclusive control and jurisdiction of the street, except in so far as the
provisions of the former statute might apply to a change of the grade of
a street, within the exclusive control and jurisdiction of a village, when
made by the legally constituted authorities thereof, v
1903.] Matter of Toroe v. Vil. of Salamanca. 325
N. Y. Rep. ] Statement of case.
2. Same — When Proceeding for Damages Caused by Change of
Grade in Street May Be Instituted and Maintained under Chap-
ter 113 of Laws of 1883 — Parties to Such Proceeding. Where a
milroad crossing over a village street was changed from a grade to an
undergrade crossing by the railway company and the authorities of the
village, pursuant to an order of the board of railroad commissioners, act-
ing under the provisions of the Railroad Law relating to the change of
railroad crossings at grade, in furtherance of public safety (L. 1890, ch.
565, §§ 62-69), whereby an alteration of the grade of the street in front of
property abutting thereon was rendered necessary, the owner of the prop-
erty may institute and maintain a proceeding for the damages caused by
such alteration under chapter 113, Laws of 1883, since all that is neces-
sary to bring the case within this statute is that the grade shall be legally
changed or altered; but, as the damages for which recovery is sought
were caused by an improvement toward the expense of which the railroad
company is required to contribute its ratable proportion, the company is
entitled to be made a party to the proceeding, and to be heard therein, as
provided by the Railroad Law.
Matter of Targe, 86 App. Div. 211, reversed.
(Argued October 8. 1903; decided October 30, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
July 30, 1903, which reversed an order of Special Term
appointing commissioners to appraise the damages alleged to
have been sustained by petitioner by reason of a change of
grade in the street in front of premises owned by her.
The facts, so far as material, are stated in the opinion
Nile* C. Bartholomew for appellant. Abutting property
owners, in incorporated villages, are entitled to damages aris-
ing from change of grade of a street, there being statutes
giving such right of compensation, (h. 1897, ch. 414, § 159 ;
L. 1883, ch. 113.) Abutting property owners in incorporated
villages being given by statute a right of compensation for
change of grade of a street, the remedy to enforce such right
is not by an action at law, but by a proceeding under the stat-
utes creating the right. (L. 1897, ch. 414, § 159.) Whether
the act of changing the grade of Main street was that of the
village authorities or the act of the state board of railroad
commissioners, in either case the abutting property owner is
326 Matter of Torge v. Vil. of Salamanca. [Oct.,
Opinion of the Court, per Cullen, J. [Vol. 176.
entitled to compensation and to maintain this proceeding.
{Matter of Jewell, 41 K Y. S. E. 409.) The power to change
the grade of a street within an incorporated village is absolute
in the municipality. {Matter of Stacks 50 Hun, 388; Uline
v. IT. Y. C. <& II. R. R. R. Co., 101 N. Y. 98.)
G. W. Cole and Henry P. Nevins for respondent. Section
159 of the Village Law, giving a right to consequential dam-
ages where a change of grade in a village street is effected,
does not contemplate a change of grade of this character and
in this manner ; but lias reference to change of grade made
by the village, as such, and as to which the village has exclu-
sive power to make the change. (L. 1897, ch. 414, § 159.)
To render the village liable it must have exclusive jurisdiction
and control of the street, having reference to the change in
fact effected, and the exclusive power to make, authorize or to
give effect by ratification or acquiescence to the change of
grade effected. (L. 1897, ch. 414, §§ 141, 159.) The village
ought not to be made liable for damages beyond its propor-
tion, as provided by the law which provides for the establish-
ment of grade crossings, and in accordance with the rules by
which such damages are ascertained. (Fries v. N". Y. cfe H.
R. R. Co., 169 N. T. 270; Muhlker v. N. Y. & H. R. R.
Co., 173 N. Y. 549 ; Bellinger v. N. Y. C. R. R. Co., 23
1ST. Y. 42; Atwater v. Trustees, 124 N. Y. 602; Talbot v. N.
Y. cfe H. R. R. Co., 151 N. Y. 155.)
Cullen, J. The petitioner was the owner and possessor of
premises in the village of Salamanca, situate at the intersec-
tion of Main street and the Erie railroad. In the year 1900 the
village by its board of trustees applied to the board of railroad
commissioners under the provisions of section 62 of the Rail-
road Law to have the crossing of the street over the railroad,
which at the time was at grade, changed to an undergrade
crossing. Such proceedings were had that in April, 1901, the
commissioners made an order directing the change to be made
according to certain plans and specifications. The improve-
1903.] Matter of Toroe v. Vil. of Salamanca. 327
N. Y. Rep.] Opinion of the Court, per Cullen, J.
ment rendered necessary an alteration of the grade of Main
street in front of "the appellant's premises. Thereupon the
trustees of the village passed a resolution changing the grade
of the street to accord with the plans of the new crossing
approved by the railroad commissioners. Thereafter and
within sixty days from the completion of the work the appel-
lant tiled a claim for damages arising from the change of
grade with the board of railroad commissioners and with the
clerk of the village. The trustees of the village failed to
agree with the appellant as to the compensation to be made to
her. She then applied to the Supreme Court for the appoint-
ment of three commissioners to ascertain and determine the
amount of her damage. The village resisted the application,
filing an answer to the appellant's petition. A trial was
thereupon had and an order made appointing commissioners
On appeal the Appellate Division reversed the order of the
Special Term and dismissed the proceedings.
As the order of the Appellate Division was a final order an
appeal lies to this court. (Matter of Munn, 165 N. Y. 149.)
We are thus brought to the merits of the controversy. The
learned counsel for the respondent contends that the appel-
lant is not entitled to any compensation because the village
authorities did not have exclusive power to make the change
in the crossing. The learned Appellate Division did not
pass on this question but held that if the appellant was
entitled to compensation she could not recover it by this
proceeding. To determine these questions it is necessary to
review the legislation on which the appellant's claim is basec1.
Under the settled law of this state damage caused to an abut-
ter by change of the grade of a street by the municipal authori-
ties was damnum absque injuria. (Radcliff's Exr%. v.
Mayor, etc., of Brooklyn, 4 N. Y. 195 ; Heiser v. Mayor,
etc., of 1ST. Y., 104 N. Y. 68.) The hardship of this rule,
however, was early appreciated and legislation was passed
to secure abutters who improved their property on the
faith of the established grade of a street from alteration of
that grade without compensation. So, in 1883, a statute (Chap.
328 Matter of Torge v. Vil. of Sa.lama.nca. [Oct.,
Opinion of the Court, per Cullen, J. [Vol. 176.
113) enacted that whenever the grade of any street or high-
way in any incorporated village should be changed so as to
injure or damage the buildings or real property adjoining such
highway, the owners thereof might apply to the Supreme Court
for the appointment of three commissioners to ascertain and
determine their damages, which damages should be a charge
on the village, town or other municipality chargeable with the
maintenance of the street or highway so altered or changed.
This statute was amended in 1884 (Chap. 281) and in 1894
(Chap. 172). The amendments relate merely to matters of
procedure, the latter statute directing that the provisions of the
Condemnation Law should be applicable to the appointment of
and the powers and duties of the commissioners appointed under
it. In 1897 was enacted the General Village Law (Chap. 414).
By section 159 it is provided that " If a village has exclusive
control and jurisdiction of a street or bridge therein, it may
change the grade thereof. If such change of grade shall
injuriously affect any building or land adjacent thereto, or
the use thereof, the change of grade to the extent of the dam-
age resulting therefrom, shall be deemed the taking of such
adjacent property for a public use." The remainder of the
section prescribes the procedure to be followed and is a sub-
stantial re-enactment of the previous law on that subject. It
is contended by the counsel for the respondent that the village
had not exclusive control of the highway at the intersection of
the railroad, and a change in the grade of the street at that
point could be effected only by an order of the railroad commis-
sioners in proceedings taken under section 62 of the Railroad
Law and that hence the appellant's case does not fall within the
terms of the section of the Village Law. But to entitle the
appellant to compensation it was not necessary that her case
should fall within the terms of the Village Law. The pro-
visions of the act of 1883 are broad and comprehensive. They
provide that whenever the grade of a street or highway in a
village shall be changed the abutter 6hall be entitled to compen-
sation for damages sustained thereby. " Due notice of such
application shall be given to the person or persons having
1903.] Matter of Torge v. Vil. of Salamanca. 329
N. Y. Rep.] Opinion of thp Court, per Cullen, J.
competent authority to make such change or alterations." It
is then provided that the damages shall be a charge against the
village or municipality chargeable with the maintenance of
the street or highway. It will thus be seen that all that is neces-
sary to bring a case within the statute is that the grade shall
be legally changed or altered ; it is not necessary that it
shall be changed or altered by the village authorities. All
that was decided on this subject in Matter of Whitmore v.
Vil. of Tarry town (137 N. Y. 409) was that the village was
not liable for the unauthorized acts of its street commissioner.
That this is the true construction of the statute of 18S3, and
that it was not intended by the Tillage Law to limit the abut- •
ter's right to compensation is made clear by section 342 of the
latter statute, which reads : " The following acts and parts of
acts are hereby repealed : * * * 4. Chapter 113 of the
Laws of 1883, and the acts amendatory thereof, so far as they
relate to the change of grade of streets or bridges by village
authorities." Unless the right of compensation for change in
the grade of a street was general and applicable to all cases
where the change of grade was made by authority of law and
unless it was intended to continue such general liability, it is
difficult to see why the repeal of the statute of 1883 was not
made absolute instead of qualified and limited. There is no
reason why an abutter whose property is injured by a change
of grade made in the interest of the general public, traveling
either on the highway or on the railroad, should be less entitled
to compensation than where such change is dictated solely
by local considerations.
We now reach the position taken by the Appellate Division,
that whatever may be the appellant's rights she is not entitled
to enforce them by this proceeding. Having decided that the
appellant's rights are secured by the act of 1883, which we
hold is still extant, it follows that she is in any view entitled
to maintain the proceedings authorized by that statute. As
already said, the proceedings under the Village Law are sub-
stantially the same as those prescribed by the law of 1883.
At least, the requirements of the former act are no greater
330 Matter of Torge v. Vil. of Salamanca. [Oct.,
Opinion of the Court, per Cullen, J. [Vol. 176.
than those of the latter. It was not necessary for the peti-
tioner to specify under what law she sought to proceed pro-
vided she complied with all the requisites of the statute on
which her rights were founded. The learned court below
thought that the provisions of section 63 of the Railroad Law,
which enact that in case of the change of a grade crossing
the municipality if unable to obtain the same by purchase
shall acquire the lands, rights or easements necessary for the
improvement by condemnation under the Condemnation Law,
and that the railroad company shall have notice of such pro-
ceedings and the right to be heard therein, were exclusive and
. inconsistent with the right of the appellant to maintain this
proceeding. We see no such inconsistency. All proceedings
of this character, whether prescribed by the act of 1883, by
the Village Law or by the Railroad Law, are to be taken
under the Condemnation Law, the only difference that I per-
ceive being that the Railroad Law contemplates the company
or municipality as being the moving party, while the act of
1883 and the Village Law casts the burden of instituting the
proceedings on the abutter who asserts that he has been dam-
aged. There is no difficulty, however, in the harmonious and
concurrent working of both statutes. In the proceeding
before us, as the damage for which the appellant seeks to
recover was occasioned by an improvement toward the expense
of which the railroad company is required to contribute its
ratable proportion, that company is entitled to be made a party
thereto and to be heard therein as provided by the Railroad
Law. Thus the rights of all parties can be secured. But the
general rule is that where a right not existing at common law
is given by a statute, and a remedy for the enforcement of
that right prescribed, the right can be enforced only through
the statutory remedy. {Dudley v. May hew, 3 N. Y. 9;
Heiser v. Mayor, etc., of N. Y., 104 N. Y. 68.) We should,
therefore, be loath to hold, unless the language of the statute
plainly requires such a result, that in any particular case the
remedy prescribed by the act fails when as a result of such a
ruling the right might fail also. Nor do we perceive the dif-
1903.] People v. White. 331
N. Y. Rep.] Statement of cose.
ference between the rule of damages that obtains in proceedings
under the Railroad Law and that which obtains under the act
of 1883 and the Village Law which is suggested by the Appel-
late Division. It is true that the latter statutes provide in
express terms for setting off benefits against injuries. But this
is the rule under the Railroad Law so far as compensation is
sought for consequential injuries. It was so held in the
elevated railroad cases. (Bohm v. Metr. K Ji. Co., 129 N. Y.
576.) The right secured to an abutter to compensation for
a change in the grade of a street is substantially the grant to
him of an easement in the street to have it maintained at its
existing grade, and any such easement created by the statute
is in every respect analogous to those invaded in the elevated
railroad cases.
The order of the Appellate Division so far as it dismissed
the appellant's petition should be reversed and the proceed-
ings remitted to the Special Term with directions to the
appellant to make the Erie Railroad Company a party thereto,
with costs to the appellant at the Appellate Division and in
this court.
O'Brien, Bartlett, Martin, Vann and Werner, JJ.,
concur ; Parker, Ch. J., not voting.
Order reversed, etc.
The People of the State of New York, Respondent, v.
Frank White, Appellant.
1. Murder — Sufficiency of Evidence. The evidence upon the
trial of an indictment for murder reviewed and held sufficient to sustain
a verdict convicting the defendant of the crime of murder in the first
degree.
2. Appeal — Briefs of Counsel Should Contain a Fair Statement
of Facts. A fair statement of the facts is essential to a proper presentation
of an appeal. An unfair statement is certain to be discovered and when
discovered affects the force of the entire brief. When the facts are not
open to review they should be stated as found, or as presumed to have
been found. When the facts are to be reviewed it is proper for counsel to
state them as he claims they should have been found in accordance with
332 People v. White. [Nov.,
Statement of case. [Vol. 176.
the weight of evidence, citing the folios where the evidence appears in
the record, but on the crucial points he should also state the testimony
opposed to his theory, so that the court may have before it a faithful
picture of the whole case. A failure to observe these rules increases the
labor of the court and reflects upon the integrity of the brief.
8. Evidence — Admissibility op Confession Procured by Decep-
tion— Code Cr. Pro. § 395 — Credibility op Witness Thereto a
Question for the Jury. Confessions made by one accused of crime
may be given in evidence unless made upon a stipulation for freedom from
prosecution or under the influence of fear produced by threats. (Code Cr.
Pro. § 395.) The fact, therefore, that a confession was procured from a
defendant charged with the crime of murder by a deception practiced by
an officer in charge of him, which is not sanctioned by the Court of
Appeals, does not make it incompetent. Confessions must be corrobo-
rated by proof "that the crime charged has been committed," and
when so corroborated, the question of the credibility of the witnesses
thereto and the circumstances under which the confessions are made
are for the consideration of the jury.
4. How Competency of Confession Is to Be Determined. The com-
petency of a confession is to be determined by the trial court upon the
facts in evidence at the time it is offered, and in all cases inquiry should
be made whether the defendant spoke through fear or in the expectation of
immunity, and when he is under arrest it should also be asked whether he
spoke to the magistrate, or to the officer in charge, or in their presence,
because he felt that he was compelled to for any reason, and it is proper
to allow a preliminary examination by the defendant's counsel to test the
competency of a confession before it is received. After it is received, if
a question of fact arises as to its voluntary character, the jury should be
instructed to wholly disregard it, unless they find that it was voluntarily
made, without threat or menace by acts, words or situation, and without
compulsion, real or apprehended, and without the promise, express or
implied, that the defendant should not be prosecuted or that he should be
punished less severely.
5. Tr'al — Instruction to Jury. Where a confession procured from
a defendant, who was imprisoned under a charge of murder, by an under-
sheriff pretending to be his friend and desiring to help him, and other con-
fessions made to fellow-priaoners who were in tha charge of the sheriff and
subject to his influence, are offered in evidence and it appears that there
is evidence to bring all of the confessions within the permission of the stat-
ute (Code Cr. Pro. § 395), but none to bring any of them within the pro-
hibition thereof, except the statement of the defendant himself, which was
denied by several witnesses, and the confessions are corroborated, oie in
nearly every particular and the others in several substantial particulars, it
is not erroneous to submit to the jury the question of fact whether any of
the confessions fell within the prohibition of the statute or of the rules of
evidence, where they are instructed to disregard them if they were made
1903.] People v. White. 333
N. Y. Rep.] Statement of case.
under the influence of fear produced by actual or covert threats, or
through promises, acts of intimidation or other unlawful means, and
unless they were voluntary, fairly obtained and not procured by inquisi-
torial compulsion or other improper methods.
(Argued October 12, 1903; decided November 10, 1908.)
Appeal from a judgment of the Supreme Court, rendered
at a Trial Term for Oswego county December 16, 1901, upon
a verdict convicting the defendant of the crime of murder in
the first degree.
The facts, so far as material, are stated in the opinion.
Z. W. Baker and Frederick G. Spender for appellant.
The jury had no right to convict the defendant upon his
alleged confessions alone. {People v. Pullerson, 139 N. Y.
339.) The prosecution must prove beyond a reasonable doubt
and by affirmative evidence every element which constitutes
the crime of murder in the first degree. {People v. Corey,
157 N. Y. 332 ; People v. Fish, 125 N. Y. 136.) The
methods used by the sheriff and under-sheriff to extort from
the defendant alleged confessions and statements as to the
location of the place where the revolver and pocket book
were hid were against public policy, and should be condemned
by the courts. {People v. Kennedy, 159 N". Y. 346.)
UdeUe Bartlett for respondent. The jury's verdict should
not be disturbed because it is amply supported by the evidence.
{People v. CignaraU, 110 N. Y. 23; People v. Taylor, 138
K Y. 405 ; People v. Stone, 117 K Y. 483 ; People v. Tice,
131 X. Y. 654 ; People v. Loppy, 128 N. Y. 630 ; People v.
Waymun, 128 N. Y. 586 ; People v. Kelly, 113 K Y. 647 ;
People v. Treiza, 125 N. Y. 740 ; People v. Fish, 125 N. Y.
144.) Defendant's confessions were amply corroborated.
{People v. Deacons, 109 N. Y. 377 ; People v. Jaehne, 103 N.
Y. 199.) The efforts of the sheriff's officers to detect and
bring to punishment the murderer of George Clare were
proper. {Cox v. People, 80 N. Y. 515 ; People v. McCallam
334 People v. White. [Nov.,
Opinion of the Court, per Vann, J. [Vol. 176.
103 K Y. 598 ; People v. Druse, 103 N. Y. 656 ; People v.
McGloin, 91 N. Y. 249 ; jfcqpfo v. Deacons, 109 N. Y. 377.)
The trial court submitted to the jury all questions as to
whether defendant's statements and confessions were volun-
tarily and freely made by him and not induced by fear and
also the question of a deliberate and premeditated design as
questions of fact. {People v. Johnson, 139 N. Y. 361 ; People
v. Bishop, 69 Hun, 105 ; People v. Cassidy, 39 N. i\ S. E.
28; 133 N. Y. 612.)
Vann, J. The homicide which gave rise to this appeal
occurred on Sunday, the 15th of September, 1901. At about
half-past three in the afternoon of that day the body of
George Clare, the deceased, was found in a potato patch upon
his farm, situated about four miles east of the city of Oswego.
The potato patch was an uninclosed part of a large field,
eighty rods east of the farmhouse in which Mr. Clare had
resided with his family for several years. There were four
bullet, wounds in the body, one on the radial side of the left
forearm, commencing half-way between the elbow and wrist
and ending just above the outer part of the wrist joint, where
the bullet was extracted.
The second was under the left arm and over the fifth rib,
the bullet having glanced and entered the breast, where it was
found about three inches from the point of entry.
The third bullet entered at the outer angle of the left eye-
brow and lodged behind the eye. It did not penetrate the
brain, but crushed the orbital arch and caused some conges-
tion through concussion.
The fourth entered " partly on the back, or between the
back and the side," cut some slivers from the tenth rib,
glaaced upward just over the surface of the liver, wounded
the lower end of the right lung, passed through the left ven-
tricle of the heart and was found in the front part of the
body at the left border of the breast bone.
Neither the first nor second wound was serious ; the third
would not necessarily have been fatal, although it might have
1903.] People v. White. 335
N. Y. Rep.] Opinion of thq Court, per Vann, J.
resulted in death from inflammation after a few days, but the
fourth, in the opinion of the physician who made the autopsy,
caused instant death. The bullets were such as are in com-
mon use in revolvers known as number 32 in calibre and
there was no indication from powder marks on the clothing,
or otherwise, that they were fired at very close range.
From twenty to twenty-five feet northeast of the body the
hat of the deceased was found, and about thirty feet south-
east of that point the vines had been pulled from a hill of
potatoes and were lying near it, while there were four or five
potatoes on top of the hill. A few days later an axe, some-
what concealed by the grass and weeds, which were thick and
high, was picked up a few feet from the potato hill. No
pocket-book or money or weapon of any kind was found upon
the body or near it and no tracks were observed.
The deceased was a well-to-do farmer about 52 years of age,
who had owned the farm npon which he resided for a good
while. His family consisted of his wife, who was about
fifteen years younger than himself, William and Russell,
grown-up sons by his first marriage, Pearl a young daughter
of Mrs. Clare by her first husband, and the defendant, who
had been the "hired man," working on the farm for six
weeks. His name is Frank While, but he was there known
only as Harry Howard.
During the afternoon before the tragedy all the children
went away to spend the Sabbath, and did not return until
Sunday night. The defendant also was away the night
before, having driven to Oswego with Mr. and Mrs. Clare,
but while they returned home he remained in the city until
the next morning. Uporj their arrival at Oswego the defend-
ant asked the deceased for two dollars on account of his
wages, when Mr. Clare went with him to a store, took out his
pocket book, got a bill changed and handed him the amount
asked for. At that time Mr. Clare had a ten-dollar bill, a five-
dollar bill and some smaller bills left, and the defendant had
an opportunity to see that he had money in his possession.
The next moruing Mr. Clare took his pocket book from his
336 People v. White. [Nov.,
Opinion of the Court, per Vann, J. [Vol. 176.
pocket to give liis wife an account for work that some one
had done for him, and she observed, as she testified, that he
then had a live-dollar bill and a ten-dollar bill besides some
silver. After giving her the statement he put his pocket
book in the right-hand pocket of his trousers, and he had the
same trousers on when he was found dead in the afternoon.
Four or five days before his death Mr. Clare came into the
house with the defendant, who is a colored man, but nearly
white, and said to Mrs. Clare, according to her evidence,
" Our man is going to leave us and you had better watch him
and see that he doesn't take anything that doesn't belong to
him." The defendant promptly answered, " Mr. Clare, you
don't think I would take anything that didn't belong to me,
do you," when Mr. Clare said to him, " I never saw a nigger
yet that wasn't a thief," and during the conversation charged
him with stealing things from the house and called him a thief
two or three times. The defendant denied the charge as often
as it was made.
When the defendant was in Oswego the night before the
homicide he told a young lady that Mrs. Clare was a very nice
woman, but he thought Mr. Clare was mean to her, and
added, " It wouldn't be well for him to be mean to her when
I am around."
The defendant at this time was about twenty years of age
and had lived in the county of Oswego for six years. > Of a
low grade of intelligence he did not know his own age or the
number of his brothers and sisters, or other facts of like
character. In the spring of 1901, a few months before the
homicide, he was discharged from the jail of Oswego county
where he had been confined for a year, during the first 6ix
months upon a sentence for assault and battery, and the rest
cf the time because he failed to give bail to keep the peace.
He was arrested soon after he entered the Clare homestead at
about eleven o'clock Sunday night. He was first handcuffed
and then searched and among the articles found upon him
were fifty-five cents in money, a half-pint bottle, one-third full
of gin, some powder for the face, a finger ring belonging to
L
1903.] People v. White. 337
N. Y. Rep.] Opinion of the Court, per Vans, J.
Mrs. Clare, which she said was usually kept on a stand in her
bedroom, but which had disappeared three days before, and a
revolver cartridge of 32-calibre, so embedded in the corner of
his right coat pocket as to be somewhat concealed. When the
ring was produced he said he found it in the yard, but on the
trial he swore that Mrs. Clare had given it to him. When the
cartridge was found he said, apparently with indignation, that
some one had put it in his pocket while the search was in
progress, but the sheriff and his officers swore that this was
not so. In response to questions put by the arresting officer
and others he declared that he had been in Oswego all day,
and that he took his breakfast and dinner there at Cordingly'g
Hotel. When asked soon after by the coroner if he had a
revolver, he replied that he never had owned or carried one.
He also said at different times and in the presence of several per-
sons that he had not been on the Clare farm that Sunday until
he came back late at night, but had spent the day at Oswego,
except as he went off for a swim, and that he had taken break-
fast, dinner and supper at Cordingly's Hotel. On the way to
jail he told the sheriff he had arrested the wrong party, and
that he ought to have taken Mrs. Clare. He insisted that he
was innocent.
On the trial two witnesses testified that about a wees: oefore
the homicide the defendant, while at a livery stable in Oswego,
took a package of tobacco from his pocket, and, in doing so,
pulled out a revolver. When asked why he carried it, he said
he was held up on the road once and should run no more
chances. A pawnbroker of Oswego testified that two or three
weeks before Mr. Clare was killed the defendant showed him
a small revolver, 32 in calibre, with a pearl handle. It was
loaded, and he was told to put it back in his pocket.
The clerk of the Cordingly Hotel testified that the defend-
ant spent Saturday night there, and the next morning paid for
his lodging, but that he did not take breakfast or dinner that
day, which was the Sunday in question. The defendant,
however, returned to the hotel at about five o'clock in the
338 People v. White. [Nov.
Opinion of the Court, per Vann, J. [Vol. 176.
afternoon and asked if he could have supper, but was told
that it would not be ready until an hour later. The girl who
waited on the table at the hotel swore that he took neither
breakfast nor dinner there, but did have supper at about six
o'clock. There was other evidence to the same effect.
Many witnesses testified that in the neighborhood of twelve
o'clock on the day of the homicide they saw the defendant
going east toward the Clare farm and some of them conversed
with him. He was also seen by several witnesses going from
the direction of the Clare farm west toward Oswego about
three o'clock in the afternoon. Two witnesses saw him come
out of an orchard into the highway and start east toward the
farm, which was about one mile away. After they were out
of sight he was seen by other witnesses to turn around and
walk west toward Oswego. From the orchard to the farm a
person going across through the woods would be substantially
concealed from observation. The defendant was not seen by
any witness within less than a mile of the Clare farm on the
day in question, until his return late at night.
The sheriff of the county, who kept the jail, testified that
the next night after his arrest the defendant asked him what
he had heard and the sheriff said : " We hear enough ; you
told us last night coming home you didn't have a revolver
and weren't out at the Clare's, to-day we locate you with a
revolver; it looks bad for you; if we don't get that gun that
you shot this man with its going hard with you." The
defendant replied : " I never shot the man." The conversa-
tion then continued: Q. "Who did shoot this man?" A.
"Mrs. Clare." Q. "Where did she shoot him?" A. "In
the potato field." Q. " Where were you ? " The defendant
hesitated and then said, " I stood in the lane about forty rods
off." The sheriff said, " Frank, if Mrs. Clare shot this man
we have got to have that revolver ; we want to convict her.
You can tell us where we can find it, so that we can go and
get it." The defendant replied, " I will go to-night." The
sheriff said, " You can tell us so that we can go just as well,"
and thereupon the defendant said that he hid the revolver by a
1903.] People *>. White. 339
N. Y. Rep.] Opinion of the Court, per Vann, J.
beech tree in the first piece of woods beyond a big corn field.
The next afternoon the sheriff took some heavy clothes to the
defendant, which he had asked for, and said, " Frank, how
came you in that lane ? " The defendant answered that he
had a date there with this woman. The sheriff said, " Then
you made this up between you," and the defendant replied,
" Yes, but she shot him before I got there ; he was pulling up
a hill of potatoes when she plugged it into him." He then
refused to talk further, saying that the sheriff was paid for
getting evidence against him.
The next day the sheriff and under-sheriff took the defend-
ant in a hack to the Clare farm and on reaching a certain
point, he got out and, handcuffed to one of the officers, led
them across lots about eighty rods to a beech tree, pointed
toward the roots and said, u You look in there and you will
get the gun." A revolver was found at the place indicated,
concealed under a covering of leaves and dirt three inches
thick, and when it was taken out, the defendant said, " That's
the gun." The revolver was of 32-calibre with a pearl
handle and in it were two empty shells and two loaded
cartridges.
After this the defendant did not talk with the sheriff any
more, but the under-sheriff wormed himself into his confidence
by making him believe he was his friend and wished to help
him, and thus by gross deception, but without threats, per-
suaded him to make further disclosures. On one occasion
the sheriff sent for the defendant's shoes, and, when he asked
for the reason, the under-sheriff said it was for use in refer-
ence to tracks. The defendant then said : " Darn those shoes.
I ought to have got it fixed. One of them was worn right
through on the ball."
Five days after the revolver was found the under-sheriff
said to the defendant, " Things look a little dark ; I would like
that pocket book or something to work on." The defendant
immediately asked, " What kind of a scheme would it be to
get that pocket book, get it into Mrs. Clare's room, in her bed
or somewhere, where it might be found?" The officer
340 People v. White. [Nov.,
Opinion of the Court, per Vann, J. [Vol. 176.
replied, "Perhaps a good one," and the defendant said,
"Supposing we do that?" and was told, "Yery well, but
where is the pocket book ? Can you go and tell us where it
is ? " and the defendant said he would. The sheriff and under-
sheriff at once took him to the Clare farm again and stopped
at the point \irhere he directed. Although it was after dark,
he led them to a stump not far from the tree where the
revolver had been found, and said, " Look in there and yon
will find the pocket book." A pocket book was found under
some dirt and leaves beneath the stump. There were some
papers but no money in it, and it was identified as the one
which Mr. Clare was in the habit of carrying.
After this the defendant, believing that the under-sheriff
was his friend, talked freely with him, and on one occasion
told him that he returned to the farm from Oswego, going
through a ravine, 6ome woods and a big corn field, and entered
the back door of the barn, where he saw Mr. Clare. He told
him the cows were in the potatoes, and Mr. Clare went to the
house, but came out at once, and they walked along together
and drove out the cows. They returned through the potato
patch, and while there he said to Mr. Clare : " I wonder how
the potatoes are ? " Mr. Clare laid down the axe which he had
taken in order to repair the fence, stooped over and com-
menced to dig potatoes with his hands, and as the defendant
continued, " I fixed him there." He was asked, " Did you
shoot him," and he answered, " Twice. I came back through
the big corn field into the woods, hid the pocket book, hid the
gun, went through the ravine out into the Hall road and back
to Oswego City."
The defendant made separate statements to three fellow-
prisoners, according to their testimony, while in jail at
Oswego. Frank Cavanaugh, who was confined for petit lar-
ceny and had been convicted before for selling whisky with-
out a license and attempting to break jail, testified that the
defendant asked him to tell the sheriff that he shot Mr. Clare
that Sunday afternoon, and that Mrs. Clare told him to. He
added that he thought this would get him off with a sentence
1903.] People v. White. 341
N. Y. Rep.] Opinion of the Court, per Vann, J.
for life. To George Le Clair, who was awaiting trial for
stealing a horse, he said that after going across lots he entered
the barn on the Clare farm, and seeing Mr. Clare, told him
the cows were in the potatoes and corn. Mr. Clare said they
would go down and drive them out, but before starting he
went to the house for a short time. They then drove the
cows out, fixed the'fence and while crossing the potato field
had an argument in relation to the defendant's wages. The
defendant finally said to Mr. Clare, " You son of a bitch, your
days are numbered right here," and pulling out a revolver,
shot him in the left side and he started to run and " hollered."
When about seven feet away he turned round to see if the
defendant was coming after him and was shot over the eye, but
did not fall. Clare started toward the defendant, put his hands
up to defend himself, when the defendant shot the third time
and hit him in the arm. Clare then got pretty close to him,
and the defendant did not want to get blood on himself, so he
sprang to one side, shot again and stayed there until Mr. Clare
was dead. He then put his hand mto the pockets of the
deceased, took out a pocket book and backed away, covering
his tracks until he reached a stone wall, when he walked down
the wall to the end, jumped off into a heap of brush, got on
the grass, walked over to a piece of woods and buried the
pocket book, after he had taken $15 out of it. He took three
empty shells out of the revolver, put in a good one, hid it
under the roots of a tree and left for Oswego. The same wit-
ness testified that after this, and but two days before the trial
began, he had another talk with the defendant, who asked
him to tell the district attorney that he was in the bam drunk ;
that Mrs. Clare knew he was there and brought him whisky ;
that she unbuttoned the bosom of her dress, pulled out a
pocket book and told him to take the pocket book and revolver
and go hide them or she would shoot him. The witness
further testified that the defendant told him that if he would
say this to the district attorney and swear to it, and he swore
to it himself* he would get off with a life sentence.
Harvey Halsted testified that he had been convicted of
342 People v. White. [Nov.
Opinion of the Court, per Vann, J. [Vol. 176.
petit larceny three times, but claimed that on one occasion he
was innocent. He swore that in November, after the homi-
cide, the defendant told him that he was in the barn with
Mr. Clare, who went to the house for something but came
back, and they both went to the lot to put out the cows.
They got into a little dispute ; the defendant said to Clare,
" Your days are numbered here," pulled oub the gun and shot
him in the left side. Mr. Clare whirled and he 6hot him in
the arm and over the eye, and then Clare started to run and
he shot him in the back, stayed over him until he was dead,
took his pocket book, backed away, brushing out his tracks as
he went, got on the stone wall, walked until he came to a
grass lot/ jumped off into a brush heap and from there went
off and planted the gun and pocket book. He found between
twelve and fifteen dollars in the pocket book. He also said
in the same conversation that at this time Mrs. Clare was over
in the corn lot a little way from the potato patch, so that if
he did not make sure of her husband she would ; that she had
a gun in her stocking-leg and he saw the prints of it when she
was running for the house from the corn lot.
Mrs. Clare testified that on Sunday morning her husband
started to carry the milk to the factory at about twenty
minutes of nine, looking at the clock just before and saying
he was late. He returned in about two hours, and shortly
before Homer Spencer, a neighboring farmer, came in. Upon
the return of Mr. Clare he went with Mr. Spencer to the
barn and about one o'clock Mr. Clare came back to the house
alone, stayed a few minutes and returned to the barn. Five
minutes later he came to the house, remained for a minute and
went out toward the barn. This was about half-past one or
twenty minutes of two, and Mrs. Clare never saw her husband
again alive. She was getting dinner at the time, and soon
after, seeing two young ladies known as the Sheldon girls,
whom she knew well, driving by, she went out and hailed
them and invited them in to dinner. They objected at first,
but upon her urgent and repeated solicitations, finally hitched
their horse and went into the house. Mrs. Clare finished her
1903.] People v. White. 343
N. Y. Rep.] Opinion of the Court, per Vann, J.
preparation for dinner, waited a half-hour after the meal -was
ready, went out on the porch and called her husband, but he
did not come and then the three sat down to the table. Just
as she finished her dinner, but before the Sheldon girls were
through and at about a quarter of three, Spencer returned.
Twenty minutes later the girls left when Mrs. Clare and
Spencer went to the barn, passed through it, went down a
lane to a pair of bars and at that point she saw a cow in the
farther corner of the field where the potato patch was. She
told Spencer to go over there and look for Mr. Clare, and if
he did not find him to call Mr. Hall who was cutting corn in
an adjoining field. Spencer went over toward the cow, and
in doing so passed through the potato patch, where he saw the
body of Mr. Clare lying, face downward, between the rows.
He called Mrs. Clare and Mr. Hall, and both came. No one
touched the body, as it was understood that this would not be
lawful, until the coroner arrived. Mrs. Clare did not go up
close to the body of her husband, but, standing off a little dis-
tance, wept and asked Mr. Hall to examine and see if he was
dead. Mr. Hall did so without touching the body, and pro-
nounced him dead. No blood was observed at this time.
They then went for help, and notified the coroner. Mrs.
Clare had a policy of insurance upon the life of her husband
for $1,000, which was promptly paid. Mr. Clare owned two
farms and left no will.
Spencer, Hall and the Sheldon girls testified to the same
story in substance, so far as their observation extended, but
with some variations. Both of the girls observed that Mrs.
Clare put the meat that was left after dinner back on the
stove to keep it warm. Mr. Hall heard shots during the day,
as he did every Sunday at that time of year, but none in quick
succession or from the direction of the potato patch. He
was working all day in the field until called over to see the
body, except while he was at dinner between one and two
o'clock. He thought that he resumed work about a quarter
of two and that it was from one to two hours later when he
was hailed by Spencer. The rustling of the corn stalks made
344 People v. White. [Nov.
Opinion of the Court, per Vann, J. [Vol. 176.
some noise which might have affected his ability to hear and
the farther end of the rows of corn was quite a distance from
the potato patch. Two neighbors, father and son, swore that
Spencer was at their house from about half -past twelve until
two or half-past. Some of these witnesses were called by the
prosecution and others by the defense.
The defendant, sworn as a witness in his own behalf,
testified that Mr. Clare gave him two dollars on Saturday night
and that he had about seventy -five cents or a dollar besides.
He spent the night at Cordingiy's Hotel and had breakfast in
the dining room, being waited upon by the regular waitress
whom he identified as a witness sworn for the People. After
going about town a little while he went over to Black creek
to go in swimming. This was a mile or more from the Clare
farm and, after dressing, he went through the woods and
entered the back door of the barn. On his way he saw a man
cutting corn in Mr. Hall's corn field. He went through the
barn to the front door, when Mrs. Clare came where he was
and said, " Hello, Harry," and he replied, " Hello, Mrs. Clare.
Where is Mr. Clare ? " She answered, " I don't know," when
he said, " I have a note for him." She asked, " What about,"
and then pulled him over to the side of the barn, took out a
pocket book and revolver and poked them into his right coat
pocket. He asked her what that was for and she said that Mr.
Clare and she went down into the corn field and drove out the
cows. After fixing the fence they went over into the potato lot
and he started to pull up some vines when she shot at him twice.
The defendant asked her what for, and she said that she and
Mr. Clere had an argument together. The defendant asked
her what she put the things in his pocket for, and she told him
to go over somewhere back in the woods and hide them. He
said he would like some dinner first, but she told him to go
back to the city after he hid the things and not to come back
until night, because she had company and didn't want him
around there. He then hid the revolver and pocket book, one
by a stump and the other at the side of a beech tree ; started
for Oswego, and reached there at about half-past four or five
1903.] People v. White. 345
N. T. Rep.] Opinion of the Court, per Vann, J.
o'clock. He took supper at six, walked aroimd town awhile,
procured a bottle of gin and returned to the Clare farm, reach-
ing the house between eleven and twelve o'clock. Soon after
he was arrested, handcuffed and searched. When the cartridge
was found he denied, with some warmth, that he ever put it
in his pocket, and said that the arresting officer or somebody
else had put it in. He declared that he found the ring in the
yard, took it to Mrs. Clare, who gave it to him, saying that
he had been a good boy, but asking him not to wear it when
Mr. Clare could see it on him. He admitted that he owned a
revolver, which he bought two or three months before, with a
box of cartridges, but said that he left it with the cartridges in
his stand drawer when he went to Oswego, Saturday night.
He testified that he was dosed with whisky in the jail until
he told where the revolver and pocket book were. He admit-
ted that he went with the officers and pointed out the places
where the articles were hid, but insisted that he was drunk at
the time. He denied absolutely making the statements to
Cavanaugh, Le Clair and Halsted as sworn to by them. He
said that he did not open the pocket book, but observed three
shells in the revolver just before he buried it. He was not posi-
tive that the revolver in evidence was his, but said that it was
just like the one he had. He denied substantially, but not all,
the statements that the sheriff and under-sheriff testified he had
made to them, and swore that before he told where the revolver
was, the under-sheriff said he wanted it to put in Mrs. Clare's
bed.
The defendant's testimony at the critical point, where he
stated what took place between Mrs. Clare and himself in
relation to hiding the revolver and pocket book, was given
with great hesitation, and seven different times he was urged,
by court or counsel, to " go on."
Mrs. Clare, when recalled, denied the story told by the
defendant abort the revolver and pocket book and swore that
she did not see him during the day. She also denied that she
had given him the ring. There was evidence tending to show
that the construction of the barn was such as to make it
346 People v. White. [Nov.,
Opinion of the Court, per Vann, J. * [Vol. 176.
impossible for her to pull him over to the north, as he testi-
fied. Two witnesses swore that he said he did not see Mrs.
Clare that day. Six witnesses testified that no whisky was
ever given to prisoners in the jail, and the three officers in
charge said that none was at any time given to the defendant.
There was much more evidence, but, having stated the
salient points, we are compelled to omit the rest in order to
restrict our opinion to reasonable limits. It is obvious that,
independent of the alleged confessions, there was a case for
the jury. Four shots were fired in succession, and the last
bullet, which caused immediate death, entered the back part
of Mr. Clare's body, apparently when he was trying to escape.
This warrants the inference that the fatal shot was fired with
the deliberate and premeditated design to effect death, and
characterized the crime as murder in the first degree. (People
v. Ferraro, 161 N. Y. 365 ; People v. Majone, 91 N. Y. 212.)
There was some evidence of motive, inadequate to be sure,
but, as we have said, while the motive to murder can never be
adecfuate, it may be obvious. The criminal records of this
court show that even a smaller sum of money than Mr. Clare
is supposed to have had upon his person when he was killed
has been the sole inducement to the gravest of crimes. Our
records also show that insulting words, recently uttered, some-
times inflame the mind and lead to murder for the purpose
of revenge.
The defendant had the means and the opportunity of per-
petrating the crime. The revolver used was his own, and he
admits that he was at the Clare farm at about the time of the
murder. He hid the pocket book and the revolver. While
the money was not found upon him, and he was not shown to
have spent it, still it appeared that he was in Oswego for four
or five hours during the evening after the homicide, and that
he there had an opportunity to dispose of it.
The statements of a person made when he is first charged
with a crime have some bearing upon the question of his
guilt. (People v. Convoy, 97 N. Y. 62, 80.) They are by
no means conclusive, and undue weight should not be given
1903.] People v. White. 347
N. Y. Rep.] Opinion of the Court, per Vann, J.
them, for innocent men sometimes lie in order to divert sus-
picion from themselves. When the defendant was arrested
he denied that he had a revolver, or that he was at the Clare
farm during the day of the homicide, and insisted that he took
dinner at Cordingly's Hotel, but these, with other statements,
were not only shown to be false, but he admitted they were
false, when on the witness stand. He, himself, pointed out
the places where he had hidden the revolver and the pocket
book and told how he approached the Clare farm in the
shelter of the forest. He neither denied nor explained why,
when he came out of the orchard and saw the carriage, he at
first walked back toward the farm and after the carriage was
out of sight, turned around and went on toward Oswego.
His effort to fasten the crime upon Mrs. Clare has little
support in the evidence, aside from his own testimony and his
conflicting statements threw doubt upon his final story. His
hesitation at a suggestive point in his testimony may have
been owing to the excitement caused by his situation, or to
the natural difficulty of describing that which never hap-
pened. It was for the jury, who saw and heard him testify,
to decide whether he spoke the truth. The evidence against
him was so strong that it would have been strange if they
had accepted his account with no substantial corroboration.
No exception was argued by the learned counsel for the
defendant, whose brief would have been of greater aid to the
court if it had stated the facts fairly and had cited the folios
where the evidence to support his statements could be found.
A fair statement of the facts is essential to a proper presenta-
tion of an appeal. An unfair statement is certain to be dis-
covered, and when discovered affects the force of the entire
brief. When the facts are not open to review they shotild be
stated as found, or as presumed to have been found. When
the facts are to be reviewed it is proper for counsel to 6tate
them as he claims they should have been found in accordance
with the weight of evidence, citing the folios where the evi-
dence appears in the record, but on the crucial points he
should also state the testimony opposed to his theory, so that
S
346 People v. White. fNbv.,
Opinion of the Court, per Vank, J. ry0ip 170.
impossible for her to pull him over to t1 //;re 0f the whole
fied. Two witnesses swore that he sr ^rease8 the labor of
Clare that day. Six witnesses test: ,0f the brief,
ever given to prisoners in the jff y^arge, which was after-
charge said that none was at an ^ting to evidence do not
There was much more e< Whether the point is raised
salient points, we are com ./^s of the defendant should
restrict our opinion to r< y^ si10Uid not ]iave been sub-
independent of the a'' ^ration, because those made to
the jury. Four six :,^fled by improper methods, while
bullet, which caus /^fb^ were unreliable, not only on
of Mr. Clare's b .. p'^r0f the witnesses, but because those
This warrants ^yj* 0f the sheriff and subject to his
the dolibera' - /f* eJI
characters ^> gtgtate that the confession of a defendant
v. rerrc ^\^ ^jence against him unless it was made upon
lhe' '//^yt* ; f^dom from prosecution, or under the influ-
' i^\ ^ produced by threats. It is not, however, suf-
'''V ^^jit a conviction, without additional proof that
?f $ (° %b teen committed. (Code Crim. Proc. § 395.)
#* ^ evidence to bring all the confessions within the
fp*0 . 1 of the statute, but none to bring any of them
ptfff the prohibition thereof, except the statement of the
fid*1*. nt9 himself, which was denied by several witnesses.
fiff c|eftr from the facts already stated that the con-
/' . pS were corroborated, one in nearly every particular
1 the others in several substantial particulars. The
$lltllte does not require corroboration in every respect, in
jcT to authorize a conviction upon confessions, but only
. the single particular, "that the crime charged has been
ccminitted-" (People v. Deacons, 109 N. Y. 374, 377;
people v. Jaehne, 103 N. Y. 182, 199.) While we do not
sanction the deception practiced by one of the officers in
charge of the defendant, the court could not exclude the con-
fessions made to him on that account. Deception was used in
order to induce the defendant to tell the truth. No induce-
ment was held out to him to confess guilt unless there was
^03.] People v. White. 349"
*Jep.] Opinion of the Court, per Vann, J.
''he confession to the under-sheriff was made to him,
Mic officer, but as a supposed friend. It is not suf-
"ude a confession by a prisoner, as yve have held,
.is under arrest at the time, or that it was made to
or in whose custody he was, or in answer to questions
.o him, or that it was made under the hope or promise of
uenefit of a collateral nature." (Cox v. People, 80 N\ Y. 500,
515.) Confessions induced by the use of decoy letters, by the
false assertion that some of the accomplices of the prisoner were
in custody, or made to a detective disguised as a confederate,
or upon the promise that they will not be disclosed, have
been received in evidence with the sanction of courts of high
authority. % (Campbell v. Commonwealth, 84 Pa. St. 187;
Commonwealth v. Knapp, 9 Pick. 496 ; Commonwealth v.
Tuckerman, 10 Gray, 173 ; State v. McKean, 36 Iowa, 343 ;
State v. Foretner, 43 Iowa, 494.)
Cautious and hesitating as courts have always been in
regard to confessions made by a person when under arrest to
those in authority over him, they have not gone so far as to
exclude them, simply because they were procured by decep-
tion, provided they were voluntarily made. {People v. Wentz,
37 N. T. 303.) They are careful, however, to leave the credi-
bility of the witness who practiced the deception and the cir-
cumstances under which the confessions were made to the
consideration of the jury. The test is whether the prisoner
had any inducement to tell a falsehood against himself, or felt
compelled to speak for any reason when he preferred to
remain silent. {Balbo v. People, 80 N\ Y. 484, 499 ; Murphy
v. People, 63 N. Y. 590 ; Commonwealth v. Knapp, supra ;
Wharton Criminal Ev. [9th ed.] § 658.)
In all cases inquiry should be made whether the defendant
spoke through fear, or in the expectation of immunity, and
when he is under arrest it should also be asked whether he
spoke to the magistrate, or to the officer in charge, or in their
presence, because he felt that he was compelled to for any
reason. The competency of a confession is to be determined
by the trial court upon the facts in evidence at the time it is
350 People v. White. [Nov.,
Opinion of the Court, per Vann, J. [Vol. 176.
offered. It is proper, and such was the course pursued in
. this case, to allow a preliminary examination by the defend-
ant's counsel to test its competency before it is received.
After it is received, if a question of fact arises as to its volun-
tary character, the jury should be instructed to wholly disre-
gard it, unless they find that it was voluntarily made, without
threat or menace by acts, words or situation, and without
compulsion, real or apprehended, and without the promise,
express or implied, that the defendant should not be prose-
cuted, or that he should be punished less severely.
The question of fact whether any of the confessions fell
within the prohibition of the statute or of the sules of evi-
dence was submitted to the jury and they were instructed to
disregard them if they were made under the influence of
fear produced by actual or covert threats, or through promises,
acts of intimidation or other unlawful means and unless they
were voluntary, fairly obtained and not procured by inquisi-
torial compulsion or other improper methods. The defend-
ant cannot justly complain of the course thus pursued by the
trial judge, which was authorized by a recent decision of this
court. (People v. Cas.ndy, 133 K". T. 612, 613.)
The confessions, me.de separately to the three prisoners,
were competent, and the credibility of the witnesses was for
the jury. There is nc evidence that any of these witnesses
was under the influence of threats or hope or that the defend-
ant's statements to them were not wholly voluntary. While
the confessions differ in some substantial particulars, they
agree in others of the utmost importance. The situation and
condition of the body, the location of the stone wall, hat, axe
and potato hill with the potatoes lying on top, the fact that
the cows were out and that an axe was needed to fix the fence
and other facts proved beyond doubt, are of peculiar signifi-
cance when considered in connection with the confessions.
The charge of the court was impartial, clear and compre-
hensive. At its close the counsel for the defendant stated
that they had no exception to it and nothing but commenda-
tion for it. The record is free from reversible error. The
1903.] People v. Adams. 351
N. Y. Rep.] Statement of case.
verdict was not against the weight of evidence nor against law,
and justice does not require a new trial.
The judgment should, therefore, be affirmed.
Parker, Ch. J., Gray, O'Brien, Bartlett, Haight and
Martin, JJ., concur.
Judgment of conviction affirmed.
The People of the State of New York, Respondent, v.
Albert J. Adams, Appellant.
1. Constitutional Law — Personal Rights. Articles 4 and 5 of the
amendments to the Constitution of the United States relating to personal
rights do not apply to actions in the courts of the state of New York.
2. Evidence — Admissibility on Criminal Trial of Private
Papers Alleged to Have Been Unlawfully Obtained. The court
when engaged in the trial of a criminal case will not take notice of the
manner in which witnesses have possessed themselves of private papers
or other articles of personal property, which are material and are properly
offered in evidence.
8. Same — When Admission op Private Papers Not Violative op
Constitutional Guaranty Against Compelling Prisoner to Be a
Witness Against Himself — Const. Art. 1, § 6. The admission in evi-
dence upon the trial of an indictment under section 344a of the Penal
Code, relating to policy playing, of private papers and property belonging
to the defendant, alleged to have been unlawfully seized by police officers
and introduced by the prosecution for the purpose of establishing his
handwriting on certain policy slips, and to show that the office in which
they were found was occupied by him, does not compel him to become a
witness against himself in violation of section 6 of article 1 of the Consti-
tution of the state of New York.
4. Crimes — Policy Gambling — Constii ittion ality op Sections 844a
and 344b of Penal Code — What Public Officers May Lawfully Be
in Possession of Apparatus Used in Game of Policy. Section 344a of
the Penal Code, creating the crime of " policy " gambling and making it
unlawful for any person to have in his possession the apparatus therefor,
is not an unauthorized interference with the ownership of private prop-
erty and is constitutional. Section 344b, making the possession by any
person other than a public officer of such apparatus "presumptive evi-
dence of possession thereof knowingly and in violation of" the preceding
section, creates no offense, but simply prescribes a rule of evidence within
the power of the Legislature, and is also constitutional. Neither section
352 People v. Adams. [Nov.,
Statement of case. [Vol. 176.
depends upon the other, each being complete in itself. The public officers
intended to be excepted by the Legislature are those who, in the dis-
charge of their official duties, are necessarily at times the custodians of
the apparatus, and this provision, therefore, is not objectionable as class
legislation.
5. Constitutionality op Indeterminate Sentence Law —Penal
Code, § 687a. Section 687a of the Penal Code, fixing a maximum
and minimum sentence for prisoners, must be considered in connection
with the law relating to prisons, permitting the parole of such prisoners,
is a merciful exercise of legislative power and is constitutional.
6. Evidence — Non-existence of Search Warrant Immaterial.
The refusal of the trial court to allow evidence as to the non-existence of
a search warrant at the time of the removal of apparatus from the place
claimed to have been occupied by the defendant as an office is not error,
such apparatus being competent evidence and the manner of obtaining
possession of it being immaterial.
People v. Adams, 85 App. Div. 390, affirmed.
(Argued October 16, 1908; decided November 10, 1908.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered July
13, 1903, which affirmed a judgment of a Trial Term entered
upon a verdict convicting the defendant of the crime of
knowingly having possession of a writing, paper and docu-
ment representing and being a record of a chance, share and
interest in numbers sold in a gambling game commonly called
" policy," and of knowingly having possession .of papers and
devices such as are commonly used in carrying on and playing
the game called " policy," in violation of section 344a of the
Penal Code.
The sections of the Penal Code, under which conviction was
had, read as follows :
" § 344a. A person who keeps, occupies or uses, or permits
to be kept, occupied or used, a place, building, room, table,
establishment or apparatus for policy playing or for the sale
of what are commonly called i lottery policies^ or who delivers
or receives money or other valuable consideration in playing
policy, or in aiding in the playing thereof, or for what is com-
monly called a ' lottery policy/ or for any writing, paper or
document in the nature of a bet, wager or insurance upon the
1903.] People v. Adams. 353
N. Y. Rep.] Points of counsel.
drawing or drawn numbers of any public or private lottery ;
or who shall have in his possession, knowingly, any writing,
paper or document, representing or being a record of any
chance, share or interest in numbers sold, drawn or to be
drawn, or in what is commonly called i policy,' or in the nature
of a bet, wager or insurance, upon the drawing or drawn
numbers of any public or private lottery ; or any paper, print,
writing, numbers, device, policy slip, or article of any kind
such as is commonly used in carrying on, promoting or play-
ing the game commonly called * policy ' ; or who is the owner,
agent, superintendent, janitor, or caretaker of any place, build-
ing, or room where policy playing or the sale of what are com-
monly called * lottery policies : is carried on with his knowledge
or after notification that the premises are so used, permits
such use to be continued, or who aids, assists, or abets in any
manner, in any of the offenses, acts or matters herein named,
is a common gambler, and. punishable by imprisonment for
not more than two years, and in the discretion of the court,
by a fine not exceeding one thousand dollars, or both."
"§ 344b. The possession, by any person other than a
public officer, of any writing, paper, or document represent-
ing or being a record of any chance, share or interest in num-
bers sold, drawn or to be drawn, in what is commonly called
4 policy,' or in the nature of a bet, wager or insurance upon the
drawing or drawn numbers of any public or private lottery,
or any paper, print, writing, numbers or device, policy slip,
or article of any kind, such as is commonly used in carrying
on, promoting or playing the game commonly called ' policy,'
is presumptive evidence of possession thereof knowingly and
in violation of the provisions of section three hundred and
forty-four-a."
The facts, so far as material, are stated in the opinion.
L. Laflin Kellogg and Alfred C. Pette for appellant. By
the reception in evidence of the defendant's private papers
seized in the raid of December 12, 1901, which had no
relation whatsoever to the game of policy, the defendant's
23
354 People v. Adams. [Nov.,
Points of counsel. [Vol 176.
constitutional right to be secure in his person, papers and
effects against unreasonable searches and seizures was violated,
and lie was also thereby compelled to be a witness against
himself in contravention of the fourth, fifth and fourteenth
articles of amindmeut to the Constitution of the United States,
and article 1, section 6, of the Constitution of the state of
New York, and section 11 of the Bill of Rights of this state.
(Boyd v. TJ. S., 116 U. S. 616; Counselman v. Hitchcock,
142 U. S. 547 ; Matter of Jackson, 96 U. S. 727 ; U. S. v.
Wong Quong Wong, 94 Fed. Rep. 832 ; Hoover v. McCliesmy,
81 Fed. Rep. 472 ; Matter of Pacific Railway Commission,
32 Fed. Rep. 241 ; Lester v. People, 150 111. 408 ; Newbury
v. Carpenter, 107 Mich. 567 ; State v. Davis, 108 Mo. 666 ;
State v. S. II. Co., 109 Mo. 118.) The statutes, sections 344a
and 344b, under which the indictment was found and the
conviction was had, are unconstitutional and void in that
thereby the defendant has been deprived of his liberty and
property " without due process of law " in violation of both
the Federal and the State Constitutions. {U. S. v. Will-
berger, 5 Wheat. 76; Colon v. Lisk, 153 N. Y. 188;
Cooley on Const. Lim. [6th ed.] 481-483 ; People v. Lyon,
27 linn. ISO; State v. Kartz, 13 R. I. 528: Cancemi v.
People, 10 K Y. 128; Maurer v. People, 43 N. Y. 1;
Messner v. People, 45 N. Y. 1 ; People v. Bradncr, 107 N.
Y. 1; Ilopt v. Utah, 110 U. S. 574; Matter of Langslow%
167 N. Y. 314.) The statute under which the defendant was
sentenced to imprisonment for a term, the minimum of which
shall not be less than one year and the maximum of which
shall be not more than one year and nine months, is unconsti-
tutional. {People ex rel. v. Warden, etc., 39 Misc. Rep. 113 ;
People ex rel. v. Fox, 77 App. Diw 245.)
William Travers Jerome, District Attorney {Howard S.
Gans of counsel), for respondent. Even if it be assumed
that some of the papers introduced in evidence were illegally
taken from the possession of the defendant on the raid of
December 12, 1901, the introduction of those papers in evi-
1903. J People v. Adams. 355
N. Y. Rep.] Opinion of the Court, per Baktlett, J.
dence would constitute no ground of error. (People v.
Gardner, 144 N. Y. 119 ; People v. Van Wormer, 175 N. Y.
188 ; 1 Greenl. on Ev. § 245a ; Gindrat v. People, 138 111.
103 ; Comm. v. Tibbitts, 157 Mass. 519 ; State v. Van Tassel,
103 Iowa, 6 ; Chastany v. State, 83 Ala. 29 ; Starchman v.
State, 62 Ark. 538 ; State v. i'Vyrm, 36 N. H. 64; Shields y.
State, 104 Ala. 35.) Section 344a of the Penal Code, under
which the defendant has been convicted, is constitutional.
(Phelps v. Racey, 60 N. Y. 10 ; People v. B. F Co., 164
K. Y. 93.) Section 344b of the Penal Code is constitutional.
(People v. Cannon, 139 N". Y. 32; Cooley on Const. Lim.
367-369 ; State v. Cunningham, 25 Conn. 195 ; TFiwten- v.
Florida, 1 L. R. A. 819 ; Comm. v. Williams, 6 Gray, 1 ;
/State v. Hurley, 54 Me. 562 ; State v. Tliggins, 13 R. I. 330 ;
/Sate w.Mellor, 13 R. I. 666, 669; Comm. v. JE?Zfey, 10
Cush. 69 ; Comm. v. Tuttle, 12 Cnsh. 502 ; Meadowcroft v.
People, 1 63 111. 56.) The indeterminate sentence law is con-
stitutional. (People ex rel. v. Fox, 77 App. Div. 245 ; £tate
ex rel. v. Peters, 43 Ohio St. 629 ; People tx rel. v. /State
Reformatory, 148 111. 413 ; ^^gr^ v. People, 167 111. 447 ;
Miller v. >State, 149 Ind. 607 ; Comm. v. Brown, 167 Mass.
144 ; Oliver v. Brown, 169 Mass. 592 ; Murphy v. Comm.,
172 Mass. 592 ; i>^y^« v. Illinois, 187 U. S. 71.)
Bartjlett, J. As this is a unanimous decision of the
Appellate Division of the Supreme Court that there is evi-
dence supporting or tending to sustain the verdict of the
jury, it is only necessary to consider the facts sufficiently to
determine the questions of law presented by this appeal.
It appears that the defendant occupied an office in the city
of New York, wherein was his desk, trunk, tin boxes, and
other articles of personal property. On a certain occasion
when the defendant was in his office, the officers of the law
appeared and stated that they had a search warrant. The
defendant replied, in substance, before they proceeded to exe-
cute the same, that it was not his office and that they would
proceed at their peril. The officers thereupon placed the
356 People v. Adams. [Nov.,
Opinion of the Court, per Bartlett, J. [Vol. 176.
defendant under arrest and searched the premises. A large
amount of papers was seized, which may be divided into two
classes : (1) The papers referred to in the section of the Penal
Code under which this indictment was found ; (2) and papers
relating to the private affairs of defendant.
The evidence discloses in detail the manner of conducting
the gambling game known as " policy," from which it appears
that certain papers are sent to a central point from different
offices or places in the city where the game is conducted,
known as " manifold sheets." Among the papers seized in
defendant's office were thirty-five hundred of these " manifold
sheets," upon some of which were indorsements and entries in
his handwriting. At the trial these " manifold sheets " were
introduced in evidence as papers described in section 344a of
the Penal Code.
The private papers of the defendant were introduced in
evidence for the double purpose of furnishing standards of
his handwriting, and also tending to prove that the office, in
which the papers relating to the game of policy were found,
was occupied by him. There were also other books and
papers put in evidence, in the handwriting of the defendant,
relating to the entries on the " manifold sheets," that need not
be more particularly described.
The first point made by the learned counsel for the appel-
lant is that, by reason of the seizure of defendant's papers, as
in the manner described, the defendant's constitutional right
to be secure in his person, papers and effects against unreason-
able searches.and seizures, was violated, and he was also thereby
compelled to be a witness against himself in contravention of
the fourth, fifth and fourteenth articles of the amendments
to the Constitution of the United States, and article 1, section
6, of the Constitution of the state of New York, and section
11 of the Bill of Rights of this state.
Articles fourth and fifth of the amendments to the Consti
tution of the United States do not appiy to actions in the
state courts.
This first point, as stated, involves two distinct propositions
1003.] People v. Adams. 357
N. Y. Rep.] Opinion of the Court, per Bartlett, J.
that must be separated in considering them. The first is an
alleged violation of the Bill of Eights, which protects a
citizen against unreasonable searches and seizures, and the
other is an alleged violation of the Constitution by compel-
ling a person in a criminal case to be a witness against himself.
There were two classes of papers seized at the time the
search warrant was executed. The legality of the seizure of
the papers described in the section of the Penal Code, under
which the indictment was found, cannot be successfully chal-
lenged ; it, therefore, remains to consider the effect of seizing
the private papers of the defendant.
In Greenleaf on Evidence (Vol. 1, § 245a) the learned
author says : " It may be mentioned in this place that though
papers and other subjects of evidence may have been ille-
gally taken from the possession of the party against whom
they were offered, or otherwise unlawfully obtained, this is
no valid objection to their admissibility if they are pertinent
to the issue. The court will not take notice how they were
obtained, whether lawfully or unlawfully, nor will it frame
issues to determine that question."
In Commonwealth v. Tibbetts (157 Mass. 519) it was held
as follows : " Evidence which is pertinent to the issue is
admissible although it may have been procured in an irregu-
lar or even an illegal manner. A trespasser may testify to
pertinent facts observed by him, or may put in evidence per-
tinent articles or papers found by him while trespassing. For
the trespass he may be held responsible civilly, and perhaps
criminally ; but his testimony is not thereby rendered incom-
petent. {Commonwealth v. Dana, 2 Met. 329, 337; Common-
wealth v. Lottery Tickets, 5 Cush. 369, 374 ; Commonwealth
v. Intoxicating Liquors, 4 Allen, 593, 600 ; Commonwealth
v. Wdsh, 110 Mass. 359 ; Comvwnwealth v. Taylor, 132
Mass. 261 ; Commonwealth v. Keenan, 148 Mass. 470 ; Com-
monwealth v. Hyan, 157 Mass. 403 ; 1 Greenleaf s Evidence,
§§ 254a and 229 ; 1 Taylor's Evidence, § 922 ; 1 Bishop's
dim. Proc. [3rd ed.] § 246.)"
In this state the same principle has been recognized in
358 People v. Adams. [Nov.,
Opinion of the Court, per Bartlett, J. [Vol. 176.
Muloffv. Peojph (45 N. Y. 213), and a kindred principle in
People v. Van Warmer (\1S N. Y. 188, 195).
The underlying principle obviously is that the court, when
engaged in trying a criminal cause, will not take notice of the
manner in which witnesses have possessed themselves of
papers, or other articles of personal property, which are
material and properly offered in evidence.
In the case before us, if there has been any illegal invasion
of the rights of this defendant, by reason of alleged unlawful
searches and seizures of private papers, his remedy is in an
independent proceeding not necessary to be considered at this
time. We do not wish to be understood as expressing an
opinion in regard to the seizure of defendant's private papers.
When the officers entered the defendant's office he assured
them he did not occupy it and that they would proceed at
their peril. It is beyond dispute that the question as to who
occupied the office was most material in connecting the
defendant with the "manifold sheets" and other papers
seized relating to the game of policy, and that the private
papers were important in this connection. The same may be
said as to the standards of defendant's handwriting.
The next question is whether this defendant was compelled
to be a witness against himself in violation of the Constitu-
tion of this state. (Art. 1, § 6.)
The appellant's counsel places great reliance upon the ease
of Boyd v. United States (116 U. S. 616), holding that an
act of Congress which authorizes a court of the United States
in revenue cases, on motion of the government attorney, to
require the defendant or claimant to produce in court his pri-
vate books, invoices and papers, or else the allegations of the
attorney be taken as confessed, was unconstitutional, being
repugnant to the fourth and fifth articles of the amendments
to the Constitution of the United States.
Article IV deals with searches and seizures and article V
contains language identical with our State Constitution, already
quoted, to the effect that no person " shall be compelled in
any criminal case to be a witness against himself. "
1903.] People v. Adams. 359
N. Y. Rep. J Opinion of the Court, per Bartlett, J.
In the case at bar, the defendant was not 6Worn as a wit-
ness, nor was ho required to produce any books or papers. So
far as this case is concerned, -as already pointed out, the man-
ner in which the witnesses for the People became possessed of
the documentary evidence is a matter of no importance. We
are of the opinion, therefore, that the defendant was not, in
any legal sense, called upon to be a witness against himself in
this criminal proceeding.
The next point argued by the appellant's counsel is, that
sections 344a and 344b of the Penal Code, under which the
indictment was found and the conviction had, are unconstitu-
tional and void, for the reason that the defendant has been
deprived of his liberty and property without due pfocess of
law, in violation of both the Federal and State Constitutions.
We have here presented two distinct questions. We are
unable to agree with the contention of appellant's counsel that
these sections are to be read together. Section 344a creates
the crime of which the defendant 'stands convicted ; it is com-
plete in itself and is in no way dependent upon the provisions
of section 344b. The latter section establishes a rule of
evidence only.
As to the alleged unconstitutionality of section 344a of the
Penal Code. By article 1, section 9, of the Constitution of
this state, it is provided as follows : " nor shall any lottery or
the sale of lottery tickets, poolselling, bookmaking, or any
other kind of gambling, hereafter be authorized by law within
this state."
Section 336 of the Penal Code provides : " It is unlawful
to keep or use any table, cards, dice or any other article or
apparatus whatever, commonly used or intended to be used in
playing any game of cards or faro, or other game of chance,
upon which money is usually wagered, at any of the follow-
ing places ; " etc.
Section 344a immediately follows a section of the Penal
Code pealing with keeping betting and gambling establish-
ments, and is an amplification of the law looking to the sup-
pression of gambling, it being aimed at the game of "policy,"
360 People v. Adams. [Nov.,
Opinion of the Court, per Bartlett, J. [Vol. 176.
so called, which offered an opportunity, to the poorer classes of
making trifling bets and who could ill afford to lose their small
earnings.
The papers referred to in section 344a are to be regarded
the same as the tools of a burglar or the general gambling
apparatus which are dealt with in the Penal Code.
The legislature, in addition to its ample general powers in
dealing with the crime of gambling, has the sanction of the
Constitution of the state.
The legislature, in order to protect game, has made it an
offense for a person to have in his possession game birds of
the kind specified after a certain date. {Phelps v. Jiacey, 60
N. Y. 10, 14.) This court said in the case last cited : " The
legislature may pass many laws, the effect of which may be
to impair or even destroy the right of property. Private
interests must yield to the public advantage. All legislative
powers, not restrained by express or implied provisions of the
Constitution, may Jbe exercised. * * * The measures best
adapted to this end are for the legislature to determine, and
courts cannot review its discretion. If the regulations operate
in any respect unjustly or oppressively, the proper remedy
must be applied by that body." (See, also, People v. Buffalo
Fish Co., 164 N. Y. 93.)
We have in the game laws a more extreme exercise of the
legislative power to interfere with the ownership of property
for the public good than is disclosed in the section under
consideration.
We are of the opinion that this section is constitutional.
Section 344b provides that the possession by any person,
other than a public officer, of certain papers used in carrying
on, promoting or playing the game commonly called " policy,"
is presumptive evidence of possession thereof knowingly and
in violation of the provisions of section 344a.
The learned trial judge, in charging the jury, called their
attention to this statute, and explained its application and
limitations. To this charge no exception was taken, and the
question of the constitutionality of this section, therefore, is
1903.] People v. Adams. 3(il
N. Y. Rep.] Opinion of the Court, per Bartlett, J.
not presented., In People v. Spiegel (143 N. Y. 107, 113) it
was held that a party may waive the benefit of even a consti-
tutional provision.
As this is a question of public importance, we will disregard
the alleged waiver and consider the merits.
As already stated, this section creates no offense, but pre-
scribes a rule of evidence, subject to certain limitations.
In People v. Cannvn (139 N. Y. 32, 42, 43) this court said
" It is said the legislature can create and define a crime, but
it cannot declare what shall be prima fade evidence of its
commission. Whether the crime as defined by the legislature
has been committed by the accused is a question for the court
and jury, and it is claimed that no direction to the court or
jury as to what shall be considered prima facie proof can be
given by the legislature. * * * The legislature of this
state possesses the whole legislative power of the People
except so far as such power may be limited by our Constitu-
tion. (Bank of Chenango v. Brown, 26 N. Y. 467.) The
power to enact such a provision as that under discussion is
founded upon the jurisdiction of the legislature over rules of
evidence both in civil and criminal cases. This court has
lately had the question before it. (Board of Comrnrs. of
Excise v. Merchant, 103 N. Y. 143.) * * * It cannot be
disputed that the courts of this and other states are committed
to the general principle that even in criminal prosecutions the
legislature may, with some limitations, enact that when certain
facts have been proved they shall be prima facie evidence
of the existence of the main fact in question." This principle
has been approved in a number of states.
The legislature, in the section under consideration, has gone
a step further and provided that the possession by any person,
other than a public officer, of the various papers and writings
used in carrying on, promoting or playing the game commonly
called "policy," is presumptive evidence of possession thereof
knowingly and in violation of the provisions of section 344a.
In other words, the legislature has cast the burden of proof
upon the person who has in his possession these incriminating
362 People i\ Adams. [^'°.v-.
Opinion of the Court, per Bartlett, J. [Vol. 1T6.
papers. The fullest opportunity is afforded him to rebut this
statutory presumption. The exercise of this power is clearly
within constitutional limitations and calculated to aid the
People in prosecuting persons engaged in this form of
gambling.
The appellant, in discussing this section, raises the addi-
tional point that it is class legislation, for the reason that it
excepte from its provisions public officers.
It is argued that a notary public is a public officer, ana that
he might be knowingly in possession of these papers used in
the game of policy with impunity.
It is true, if we give a literal construction to the language
of this section, that the statement is warranted ; but the rule
is that all statutes must be reasonably construed, and in this
case it is obvious that the legislature intended to except those
public officers, who, in the discharge of their official duties,
were necessarily, at times, the custodians of these papers.
The section under consideration is clearly constitutional.
The appellant makes the further point, that the statute
under which the defendant was sentenced to imprisonment
for a term, the minimum of which shall be not less than on**
year, and the maximum shall be not more than one year and
nine months, is unconstitutional.
Section 687a of the Penal Code was enacted in 1901>
presumably in the interest of defendants who had never
before been convicted of a felony. The fixing of a maximum
and minimum sentence is to be considered in connection with
the law relating to prisons. (§§ 74 to 83, Birdseye's K. S.
[3d ed.] vol. 2, pp. 2737, 2738, 2739.) In brief it is provided
(§ 77) that the superintendent of state prisons shall cause to
be kept a record of each prisoner therein confined upon an
indeterminate sentence ; and if it shall appear (§ 78) to the
board of commissioners of paroled prisoners that there is a
reasonable probability that such prisoner will live and remain
at liberty without violating the law, the board is permitted to
release him on parole after service of the minimum sentence ;
but until the expiration of the maximum term he is not
1903.] Bcckhout v. City of Xew York. 363
N. Y. Rep.] Statement of case.
absolutely discharged, and is liable to rearrest if lie violates
his parole. This is a merciful exercise of legislative power
which has been repeatedly approved by the Supreme Court.
This form of legislation has been sustained by the courts of
manv other states.
The provisions to which attention lias already been called,
relating to the release of paroled prisoners, remove some of
the objections urged by the appellant. The legislation com-
plained of is constitutional and in the interest of the defendant
who stands before the court charged with a first offense.
The appellant in his final point argues that the court erred
to the prejudice of the defendant in refusing to allow evidence
as to the non-existence of a search warrant at the time the
papers were removed from the office of defendant.
We have already pointed out that the court will not take
notice of the allegation that the possession of the papers offered
in evidence on a criminal trial has been unlawfully acquired.
It follows that the questions asked of the witness Cuff were
immaterial. The fact that an officer, engaged in the search of
defendant's office for papers, testified that there was a search
warrant does not vary the situation.
The judgment of conviction and the order appealed from
should be affirmed.
Pakkeb, Ch. J., Gkay, O'Brien, IIaight, Martin and
Vann, JJ., Concur.
Judgment of conviction and order affirmed.
James Buckiiout, Appellant, v. The City of New York,
Respondent.
Tax — New York City — Effect of Assessment Made While Pro-
ceeding for Condemnation of Property by City Is Pending — Tax
Not a Lien, When Title Passed to City Before Confirmation of
Assessment Roll. Where the report of commissioners in condemnation
proceedings instituted by the city of New York to acquire certain real
estate for municipal purposes, which awarded n certain sum to the owner
thereof "for land aud improvements," was confirmed by the court on
364 Buckhout v. City of New York. [Nov.,
Statement of case. [Vol. 176.
December 23, 1897, and the title to the property was taken thereunder *y
the city on July 6, 1897, the owner is not liable for the taxes levied on the
property under an assessment roll in which the property was listed and
valued as of the second Monday of January, 1897, where the assessment
roll was not acted upon and confirmed by the municipal authorities until
August 24, 1897, one month and sixteen days after the title had passed
from the owner to the city; the tax never became a lien upon the land,
since when the assessment valuation was made condemnation proceedings
were in progress, and by due course of procedure the city became the
owner of the property more than six weeks before the assessment was
completed, and a tax, whether imposed upon, property or upon the person
of the owner on account of his ownership of the property, cannot be
enforced if, before the tax becomes a lien, the city suspends its power of
taxation by taking the property away from the owner through the power
of eminent domain.
Buckhout v. City of New York, 82 App. Div. 218, reversed.
(Argued October 20, 1903; decided November 10, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered in
favor of defendant April 29, 1903, upon the submission of
a controversy under section 1279 of the Code of Civil
Procedure.
The nature of the controversy and the facts, so far as
material, are stated in the opinion.
Charles Z. Guy for appellant. An assessment, until con-
firmed, is not a tax, and, therefore, not legally chargeable as a
debt. (Coudert v. Iluerstel, 60 App. Div. 85; Lathers v.
Keogh, 109 N. Y. 583 ; Matter of Maresi, 74 App. Div. 79.)
Unconfirmed taxes cannot be considered by the commissioners
in making their award. {Matter of Mayor, etc., 40 App. Div.
281 ; Matter of Riverside Park, 59 App. Div. 603.) Con-
demnation proceedings are plenary in their nature, and the
rights of property owners should be strictly guarded^ (Cooley
on Const. Law [3d ed.], 365 ; Matter of Water Comrs. of
Amsterdam, 96 N. Y. 351 ; Matter of B. EL By. Co., 123
N. Y. 351.)
George L. Bives, Corporation Counsel {Theodore Connoly,
James M. Ward and David Rurnsey of counsel), for respond-
1903.] Buckhout v. City of New York. 365
N. Y. Rep.] Opinion of the Court, per Vann, J.
ent. In the tax district comprising the city of New York,
where property is lawfully assessed on the second Monday of
January in any year, neither a change of ownership nor use
after the books close will affect any liability lawfully attach-
ing on the second Monday of January in any year. (People
ex rel. v. Coleman, 126 N. Y. 433 ; liundell v. Laikey, 40
N. Y. 516 ; Matter of Babcock, 115 N. Y. 458.) The plain-
tiffs liability to pay any tax to be extended against the assess-
ment upon his property for the year 1897 became fixed on
the second Monday of January in that year. (McMahon v.
Beekman, 65 How. Pr. 427 ; Assn. for Orphans v. Mayor,
etc., 104 N. Y. 581 ; Mygatt v. Washburn, 15 N. Y. 316 ;
Sisters of Poor v. Mayor, etc., 51 Hun, 355 ; Matter of A.
F. A. Society, 6 App. Div. 496.)
Vann, J. On the 6th of November, 1896, the proper
authorities of the city of New York took tna initial steps to
acquire certain real property belonging to the plaintiff situate
in said city. On the 22d of December, 1896, commissioners
of estimate and assessment were appointed, and on the 19th of
February, 1897, a resolution was adopted by the board of
street opening and improvement, as authorized by statute,
providing that title to said land should vest in the city on the
6th of July following. On the 23d of December, 1897, the
report of the commissioners, made seven days before, was
confirmed, whereby the plaintiff was awarded the sum of
$127,312.50 "for land and improvements." The improve-
ments were worth about $6,000.
On the second Monday of January, 1897, the plaintiff, then
a resident of the city of New York, was " assessed upon the
said property by name as its owner for purposes of local taxa-
tion for the year 1897." No application was made by the
plaintiff to correct the assessment, and on the 24th of August,
1897, the local taxes for that year were duly confirmed and
the amount extended opposite the description of the plaintiff's
land was the sum of $945. On the 15th of January, 1898,
the whole amount of said award was paid over to the plaintiff,
366 BuOKHOUT V. (■ITY OF M K\V YoKK. [Xo\\
Opinion of the Court, per Vakn, J. [Vol. 176.
but only upon tlie condition required by the comptroller that
he should deposit his certified check for the sum of $1,100, as
security for the payment of said taxes, provided it should be
held that they were chargeable against him. It was under-
stood that the check should be retained by the comptroller
until the determination of the question whether the uncon-
firmed taxes of 1897, standing against the property at the time
title thereto vested in the city of New York, " should prop-
erly be deducted from the amount of said check," which has
not been cashed but is held by the comptroller to await the
result of this action. Upon the submission of the controversy,
the plaintiff demanded judgment for the sum of $1,100, or the
return to him by the defendant of his check for that amount,
while the defendant demanded judgment for the amount of
said taxes for the year 1897. The Appellate Division, by a
divided vote, overruled the contention of the plaintiff and
ordered judgment in favor of the defendant for the amount
of said taxes. From the judgment entered accordingly the
plaintiff appealed to this court.
The award is presumed to cover the value of the land at the
time when title passed to the city, but the owner is also
entitled, " in addition to the value of " the property at that
date, " to the amount of all taxes and assessments levied or
imposed upon the property " after that date, " which shall
have been actually paid by the owner." {Matter of Mayor ',
etc., ofN. F, 167 N. Y. 027, G28.) If, however, after the
passing of title, the owner remains in possession and receives
an income from the property, it is to be deducted from or
applied upon the taxes so paid. {Matter of Mayor, etc., of
N. F., supra ; Matter of Board of Education of N. F,
169 K. Y. 456, 459.) It does not appear and cannot be pre-
sumed that the plaintiff had the use of the land after the title
vested in the city, and hence, if he had paid the tax in ques-
tion, according to the authorities cited, he would have been
entitled to receive the amount thereof in addition to the value
of the property at the time of appropriation. (Id.)
"When Matter of Mayor, etc., of X. Y. K*upra), sometimes
1903.] BrcKiiouT v. City ok New York. 367
N. Y. Rep.] Opinion of the Court, per Vann, J.
cited as Matte?* of Riverside Park, was before the Appellate
Division, Mr. Justice Patterson, who wrote for that court,
said, " We conceive th*e proper rule in this case to be that
interest and taxes are to be added to the award, but, as an
offset, a deduction may be made of rentals actually received by
the owner, or where rentals have not been received, of the value
of the use and occupation of the premises from the date of the
appropriation of the property to the time of the award. As
these subjects of deduction are in the nature of offsets, we are
of the opinion that the burden is upon the city to show what
amounts should be allowed by way of deduction." (59 App.
Div. 603, 606.) When that case came to us certain questions
were certified for decision, and among them the following :
u In a proceeding to ascertain the compensation which shall be
paid to the owners or persons interested in real property, the
title to which is acquired under chapter 152 of the Laws of
1894, are the owners of such real property entitled, in addi-
tion to the value of said real property on the date of the pass-
age of said act, to the amount of all taxes and assessments
levied or imposed upon the property sought to be acquired
after the passage of the act and which shall have been actually
paid by said owners ? "
We affirmed the order appealed from, answered the question
certified in the affirmative and adopted Justice Patterson's
opinion. While that case arose under a different statute from
that under which the plaintiff's land was condemned, the pro-
visions of both are the same in substance so far as the vesting
of title, the award and the effect thereof are concerned.
The court below sought to distinguish that case from nie
one under consideration on the ground that in the former the
award was of a fixed sum " subject to the lien of all unpaid
taxes, assessments and water rates," while it does not appear
that the award in this case contained any statement upon the
subject of unpaid taxes. The statement of facts upon which
the controversy now before us was submitted 6imply says that
the plaintiff was awarded " the sum of $127,312.50 for land
and improvements," and it cannot be presumed, under all the
368 Buckhout v. City of New York. [Nov.,
Opinion of the Court, per Vann, J. [Vol. 176.
circumstances, that the commissioners took into account or
included in the award the tax in question.
According to the statute in force when the tax was in form
assessed, real property in the city of New York was listed and
valued as of the second Monday in January, and from that
date until the first of May valuations thus made could be cor-
rected, but after that date the books were closed to enable
assessment rolls to be prepared for delivery to the municipal
assembly on the first Monday of July. (City charter, L. 1897,
ch. 378, §§ 889, 892, 895, 907.) The assessment rolls were
perfected by the action of the municipal assembly, which
fixed the amount of the tax upon each piece of property, and
on or before the first of September the completed rolls were
delivered, with the proper warrants attached, to the receiver
of taxes, who was thereupon required to collect the amounts
as extended in a column opposite the valuations. (Id. §§909,
910.) The municipal assembly did not finally act upon the
rolls in question until the 24th of August, which was one
month and sixteen days after title to the land formerly belong-
ing to the plaintiff had passed from him to the city. The
taxes never became a lien upon the land, which on the 6th of
July was transferred by the act of the defendant from the
status of assessable property to that of property exempt from
taxation because it was owned by the city. When the valua-
tion was made condemnation proceedings were in progress,
and by due course of procedure the city became the owner of
the property more than six weeks before the assessment was
completed. Condemnation is, in substance, a compulsory sale
and so far as its effect upon concurrent taxation is concerned,
may properly be treated the same as if the sale had been vol-
untary. If the plaintiff had voluntarily conveyed his land to
the defendant on the 6th of July, 1897, the city would have
taken the same title as an ordinary grantee, and even a cove-
nant by the plaintiff in the deed that the premises were free
and clear from all incumbrances would not have enabled the
city to compel him to pay the tax. {Lathers v; Keogh, 109 N.
Y. 583 ; Dowdney v. Mayor, etc., ofJST. T., 54 N. Y. 186.) As
1903.] Bcckhout v. City of New York. 369
N. Y. Rep.] Opinion of the Court, per Vann, J.
was said by Judge Gray in the case first above cited : u Until
the amount of the tax is ascertained and determined, no lien or
incumbrance exists by reason thereof, and we think that the
proper construction of this covenant (against incumbrances)
merely calls for the freedom of the property, at the time of
the conveyance, from what can be considered an incumbrance
upon the property; not freedom from some undetermined
matter which may ripen into a charge, imposed as a lien by
law, but freedom from a visible and ascertained incumbrance."
Whether, as a general rule, a completed tax creates a debt
against the owner, as a primary liability with a lien on the
land as security or not, we think that in this case the passing
of title to the city exercising the taxing power before the
assessment ripened into a lien, destroyed the basis and consid-
eration for the tax, and prevented the. enforcement thereof
either as a personal liability or a lien. A tax, whether imposed
upon property or upon the person of the owner on account of
his ownership of the property, cannot be enforced if, before
the tax becomes a lien, the city suspends its power of taxation
by taking the property away from the owner through the
power of eminent domain. The city cannot tax and condemn
at the same time. The exercise of the power of condemna-
tion, when completed, excludes the power of taxation, so far
as the property taken is concerned. After the sixth of July,
1897, when the city took the property as its own, it could not
lawfully fix the amount of the tax or extend it to the column
opposite the valuation, or take any step to convert the assess*
ment or valuation previously made into a complete tax> defi-
nite in amount and capable of enforcement. Taxation cannot
create a debt until there is a tax fixed in amount and perfected
in all respects. It is not enough to lay the foundation, but
the structure must be built. There cannot be a complete tax
laid upon real estate until it is so perfected as to become alien,
because until then the amount cannot be known. The rights
of the owner and the city became fixed on the day when title
vested in the latter, and unless at that time there was a tax
which could be enforced as a debt without further action to
24
370 Buckhout v. City of New Yobk. [Nov.,
Opinion of the Court, per Yank, J. [Vol. 176.
fix the amount, there never was, for after the city had taken
the property by force and had it as its own, it could not, by
proceedings on its part, create or perfect a personal liability
against the owner on account of that property. A city can*
not eat its cake and have it any more than a citizen. It cannot
commence proceedings to tax, then take away the property,
and after that complete the process of taxation. From the
moment the plaintiff ceased to be the owner he was relieved
of all the burdens of ownership. The power of taxation by
the city ceased when the power of eminent domain destroyed
private ownership and turned the property over to the city. It
was the act of the city itself in condemning the property
which brought about this result, for if the appropriation had
been by a railroad company, it would have had no effect upon
the right to mature and collect the tax.
Jurisdiction to assess in the city of New York on the first
Monday of January ordinarily gives jurisdiction to complete
the assessment regardless of transfers or changes of residence
in the meantime. Grants of property voluntarily made, after
it has been listed and valued, but before the tax is confirmed
and completed, do not concern the city nor prevent it from
taking the course of procedure prescribed by statute. Such
were the facts in the cases chiefly relied upon by the respond-
ent, which hold that ordinary changes of ownership do not
affect subsequent action to complete the tax, but this was not
an ordinary change, nor one for which the city had no responsi-
bility. It is not a case of sale by one citizen to another citizen,,
which would not arrest action by the city to mature the tax,
but of condemnation by the taxing power itself of the prop-
erty of a citizen, which necessarily precludes further efforts by
that power to finish and fasten a liability on the former owner
because he once owned the property. By no act of his did he
cease to be the owner, and by no act of the city, after it became
the owner, can a personal liability be completed and enforced
against him.
For these reasons we think that the judgment of tne Appel-
late Division should be reversed and judgment rendered in
1903.] Martin v. City of New York. 371
N. Y. Rep.] Statement of case.
favor of the plaintiff for the return to him by the defendant
of his check for $1,100, unpaid, or, in default thereof, for the
amount of said check, with costs in both courts.
Parker, Ch. J., Haight, Martin, Cullen and Werner,
JJ., concur ; Gray, J., dissents on ground that it is to be pre-
sumed that the commissioners, in making their award at a
time subsequent to the levying of the annual tax, took into con-
sideration the amount of the plaintiff's indebtedness therefor.
Judgment reversed, etc.
Prank J. Martin, Appellant, v. The City of New York,
Respondent.
New York City — Payment to Dr Facto Clerk Is a Defense to
Action for Salary by De Jure Clerk. When a clerk in the office of
the board of aldermen of the city of New York, who had been removed
and another appointed in his place, was reinstated by mandamus because
he had been removed without "an opportunity to present an explanation
in writing," the city is not liable to such clerk for the salary of the posi-
tion in question during the period between the date of his removal and
the date of his reinstatement, where during that interval the salary of the
position was paid to another, who, by an appointment regular upon its
face, held the position, performed the duties thereof and was paid the
compensation attached thereto.
Martin v. City of New York, 82 App. Div. 35, affirmed.
(Argued October 21, 1903; decided November 10, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered April
30? 1903, affirming a judgment in favor of defendant entered
upon a verdict directed by the court.
The nature of the action and the facts, so far as material,
are stated in the opinion.
A. S. Gilbert for appellant. As a regular clerk the plain-
tiff's relation to the city of New York was purely contractual.
He was not a public officer. (Stemson v. Bd. of Education^
165 N. Y. 431 ; Graham v. City of New York, 167 N. Y.
372 Maktix v. City of New York. [Nov.,
Opinion of the Court, per Vann, J. [Vol. 176.
85.) The rule that payment to a de facto officer, while hold-
ing the office and discharging its duties is a defense to an
action brought by the de jure officer, has no application to
the case at bar. {People ex rel. v. Mayor, etc., 49 App. Div.
208 ; Terhune v. Mayor, etc., 88 N. Y. 247 ; Fitzsimons v.
City of Brooklyn, 102 N. Y. 536 ; Steinson v. Bd. of Edu-
cation, 165 N. Y. 431 ; Graham v. City of New York, 167
N. Y. 85.)
George L. Rives, Corporation Counsel {Theodore Connoly
and Terence Farley of counsel), for respondent. The pay-
ment of the salary of an office to the de facto officer will
defeat an action brought by the de jure officer to recover
salary for the same period. {Dolan v. Mayor, etc., 68 N. Y.
274 ; Mc Veany v. Mayor, etc., 80 N. Y. 185 ; Terhune v.
Mayor, etc., 88 N. Y. 247 ; Demarest v. Mayor, etc., 147 N.
Y. 203 ; Shaw v. Pima County, 18 Pac. Rep. 273 ; Gormmi
v. Boise County, 1 Idaho, 655 ; S. C. Comrs. v. Anderson,
20 Kans. 298 ; Michel v. New Orleans, 32 La. Ann. 1094 ;
Wayne Co. Auditors v. Benoit, 20 Mich. 176 ; Parker v.
Dakota Co. Suprs., 4 Minn. 59.) The rule referred to like-
wise applies to municipal employees. {Higgins v. Mayo?;
etc., 131 N. Y. 128 ; O'llara v. City of New York, 28 Misc.
Rep. 258 ; 46 App. Div. 518 ; 167 N. Y. 567 ; Van Valken-
hurgh v. Mayor, etc., 49 App. Div. 208.)
Vann, J. For several years prior to the first of October,
1900, the plaintiff was a clerk in the office of the clerk of the
board of aldermen of the city of New York, but on that day
he was removed and A. Joseph Porges was forthwith appointed
in his place. Mr. Porges occupied the position, performed
the duties and was paid the salary from the first of October,
1900, until the 24th of January, 1901, when the plaintiff was
reinstated by mandamus because he had been removed with-
out " an opportunity to present an explanation in writing."
{People ex rel. Martin v. Scully, 56 App. Div. 302.)
The object of this action was to recover the salary attached
1903.] Maktin v. City of New York. 373
K. Y. Rep.] Opinion of the Court, per Vann, J.
to the position during the period while it was paid to the
wrongful incumbent. The foregoing facts having been
admitted at the trial, the court directed a verdict in. favor of
the defendant, and after affirmance of the judgment by the
Appellate Division, the plaintiff came here.
It is well settled in this state that " payment to a de facto
public officer of the salary of the office, made while he is in
possession, is a good defense to an action brought by the de
jure officer to recover the same salary after he has acquired
or regained possession," and that the remedy of the latter is
by action against the former. (Dolan v. Mayor, etc., of N.
Y, QS N. Y. 274, 280, 281 ; Mc Veany v. Mayor, etc., of N.
Y, 80 K Y. 185 ; Terhune v. Mayor, etc., of N. Y., 88 N.
Y. 247; Demarest v. Mayor, etc., of N. Y., 147 K Y. 208.)
These- decisions rest upon the principle that the public cannot
be compelled to pay twice for the same services, and that the
officer charged with the duty of paying salaries is not required
to go behind the commission or the certificate of election and,
at his peril, decide difficult questions of fact or law, but may
make payment to the person who occupies the office and per-
forms its duties.
It is, however, insisted that the rule does not apply to this
case, because the plaintiff was not a public officer but an
employee holding a contractual relation to the city, and the
following cases are relied upon to support the position : Stein-
son v. Board of Education of N. Y. (165 K Y. 431) ; Graham
v. City of New York (167 N. Y. 85). There is an important
distinction between the cases cited and the one in hand,
because in neither of the former was the position filled and
no one was paid for services rendered by a de facto occupant.
The rule governing payments to a de facto officer is founded
in public policy and applies with the same force to payments
made to a de facto occupant of a position of public employ-
ment although not an officer. In deciding those cases, as is
obvious from the opinions, we did not intend to disturb the
rule laid down in Higgins v. Mayor, etc., of N. Y., (131 N.
Y. 128). In that case an honorably discharged soldier,
374 Cole v. Andrews. [Nov.,
Statement of case. [Vol. 176.
appointed by the mayor of the city of New York to a position
as laborer at the fixed compensation of two dollars a day, was
wrongfully discharged, another person was appointed in his
place, and was paid by the city until the veteran was rein-
stated by legal proceedings. We held that he could not main-
tain an action to recover the stipulated wages for the period
while the position was filled by the intruder, and that the city
was not bound to make any compensation to him for the time
he was not in actual service. Terhune v. Mayor, etc. of N.
Y., (supra), was followed, and the principle applicable to a
de facto officer was applied to the de facto incumbent of the
position then under consideration, because the reason for the
rule which controlled the decision in the one case applied
with equal force to the other.
We distinguish the case now before us from those relied
upon by the appellant, and, following the Higgins case, hold
that the defendant is not liable to the plaintiff for the salary
of the position in question during the period between the date
of his removal and the date of his reinstatement, because dur-
ing that interval the salary of the position was paid to another,
who, by an appointment regular upon its face, held the posi-
tion, performed the duties thereof and was paid the compen-
sation attached thereto.
The judgment should be affirmed, with costs.
Parker, Ch. J., Gray, Hajght, Martin, Cullen and
Werner, JJ., concur.
Judgment affirmed.
Thomas H. Cole et al., as Executors of Christopher Swezey,
Deceased, Respondents, v. Minnie E. Andrews, as Admin-
istratrix of the Estate of Frank E. Swezey, Deceased,
Appellant.
Interest — Moneys Advanced Subject to Election op Executors to
Treat Advancement as a Loan — Interest Runs from Time of Elec-
tion. Under a written instrument executed by a son acknowledging that
his father had furnished him n specified sum of money ; that it was not a gift,
but a debt due the father; that it might be collected after his father's
1903.] Cole v. Andrews. 375
N. Y. Rep.] Opinion of the Court, per Parker, Ch. J.
decease by his legal representatives at their election by treating it as a
loan and enforcing it, or as an advancement, deducting it from his share
in the estate; when such sum is enforced as a loan, interest should be
awarded from the day when the executors elected to treat it as such, and
not from the time the money was advanced by the father.
OoU v. Andrews, 88 App. Div. 285, affirmed.
(Submitted October 80, 1908; decided November 10, 1908.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered May
29, 1903, modifying and affirming as modified a judgment in
favor of plaintiffs entered upon a verdict directed by the
court.
The nature of the action and the facts, so far as material,
are stated in the opinion.
John A. Thompson and W. W. Thompson for appellant.
Edgar J. Phillips and Frank M. Avery for respondents.
Parker, Ch. J. This action was brought by the executors
of Christopher Swezey against the* administratrix with the
will annexed of his son, Frank E. Swezey, to recover moneys
furnished to the latter by his father. Plaintiffs' claim rests
on the following instrument :
" I, Frank E. Swezey, a son of Christopher Swezey, hereby
acknowledge that at this date I am indebted to him in the
sum of $2,961 advanced to me by him between March 1, 1893,
and November 14, 1893. I hereby agree that the same shall
be charged against any portion of the estate of Christopher
Swezey that may fall to me under any will that he may leave,
and that the same may be and shall be charged as an advance-
ment against such portion. I further agree that the same
may be held as a debt due by me to the estate of said Christo-
pher Swezey if the executors or administrators of said estate
desire to treat the same as a debt, and the same may be offset
against the share or portion so coming td me or otherwise in
form so as to accomplish the charging of the same against
376 Cole v. Andrews. [Nov.,
Opinion of the Court, per Parker, Ch. J. [Vol. 176.
either the real or personal property which I may inherit from
said Christopher Swezey."
This instrument contains four clauses :
I. " I, Frank E. Swezey, a son of Christopher Swezey,
hereby acknowledge that at this date I am indebted to him
in the sum of $2,961 advanced to me by him between March
1, 1893, and November 14, 1893." This clause acknowledges
the liability*
II. " I hereby agree that the same shall be charged against
any portion of the estate of said Christopher Swezey that may
fall to me und^r any will that he may leave, and that the same
may be and shall be charged as an advancement against such
portion." This authorizes the deduction of the sum, as an
advancement from any part of the father's estate falling to
the son under any will of the father.
III. " I further agree that the same may be held as a debt
due by me to the estate of said Christopher Swezey if the
executors or administrators of said estate desire to treat the
the same as a debt." This clause authorizes the executors or
administrators of the estate of the father, if they so elect, to
treat such sum as a debt due the estate — a chose in action.
IV. " And the same may be offset against the share or por-
tion so coming to me or otherwise in form so as to accomplish
the charging of the same against either the real or personal
property which I may inherit from said Christopher Swezey."
This clause authorizes the charging of the said sum, as an
advancement, against the son's share in the father's estate
should the latter die intestate.
The instrument is an acknowledgment that the father has
furnished a specified sum of money to the son ; that it is not
a gift, but a debt due the father, and that it may be collected
af ter the decease of the father by his legal representatives ;
and, further, that the sum may be collected, at the election
of those legal representatives, (1) by treating the sum fur-
nished to the son as a loan, and enforcing it, or (2) by treating
it as an advancement and deducting it from the son's share in
the estate.
1903.] Maas v. German Savings Bank. 377
K. Y. Rep.] Statement of case.
We think the Appellate Division was right in modifying
the judgment by deducting the interest for the time prior to
the day when the executors elected which remedy they would
pursue.
The judgment should be affirmed, with costs.
Gray, O'Brien, Haight, Martin, Cullrn and Werner,
JJ., concur.
Judgment affirmed.
Charles Maas, as Administrator of the Estate of Frieda
Maas, Deceased, Appellant, v. The German sJvings Bank
in the City op New York, Respondent.
Executors and Administrators — When Payment to Foreign
Administrator After Appointment of Administrator in this State
Discharges Debt. Tpe Payment by a savings bank in the city of New
York of a deposit, maHox>y a decedent who was a resident of another
state, to an administrator appointed therein, is good and discharges the
indebtedness, although several months prior thereto an administrator had
been appointed in this state, when the payment is made in good faith and
without actual notice of such appointment and it does not appear that the
decedent had any creditors in this state; and the fact that the appoint-
ment was a matter of record in the surrogate's office is not sufficient to
charge the bank with constructive notice thereof.
Maas v. German Savings Bank, 73 App. Div. 524, affirmed.
(Argued October 20, 1903; decided November 10, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered July
8, 1902, upon an order reversing a judgment of the Appellate
Term of the Supreme Court, which affirmed a judgment of
the General Term of the City Court of the city of New York
affirming a judgment in favor of plaintiff enteied upon a
decision of the court at a Trial Term.
The nature of the action and the facts, so far as material,
are stated in the opinion.
Thomas F. Gilroy, Jr., for appellant. The title, or, at
least, the right of possession to the balance of the deposit
378 Maas v. German Savings Bank. [Nov.,
Points of counsel. [Vol. 176.
was in the plaintiff, whether he be regarded as a subordinate or
as a principal administrator. (Code Civ. Pro. §§ 2473, 2478,
2700, 2701 ; Abbott v. Curran, 98 N. Y. 665 ; Banta v.
Moore, 15 N. J. Eq. 97 ; Preston v. Lord Melville, 8 CI. &
Fin. 1 [H. L. 1841] ; Apperson v. Bolton, 29 Ark. 418 ;
Vaughn V. JVorthrup, 15 Pet. 1 ; Dorsay v. ConneiU, 22 N.
B. 564 ; Crescent City lee Co. v. Stafford, 3 Woods [XL 8.],
94 ; 13 Am. & Eng. Ency. of Law [2d ed.], 931, 932, and
cases cited ; McIVooy v. Alsqp, 45 Miss. 365 ; Harvey v.
Richards, 1 Mason, 380.) The voluntary payment of the
balance of the account by the defendant to the New Jersey
administrator could not discharge the bank because of the
previous appointment of the New York administrator. (Stone
v. Scripture, 4 Lans. 186 ; Chapman v. Fish, 6 Hill, 554 ;
Pond v. Makepeace, 2 Mete. 114 ; E. L. Assur. Society v.
Voegel, 76 Ala. 441 ; Reynolds v. McMutten, 55 Mich. 568 ;
Parsons v. Lyman, 20 N. Y. 103, 113 ; Vroom v. Van
Home, 10 Paige, 549, 557 ; Vaughn v. Northrvp, 15 Pet
[U. S.] 1 ; Vaughn Y.Barrett, 5 Vt. 333 ; Young v. O'tfeal,
3 Sneed, 55.) The bank had constructive notice of plaintiff's
rights, and having made the payment to the New Jersey
administrator in the face of this constructive notice, it is
chargeable as if negligent, and the payment is no bar to this
action. (Farmer v. M. S. Inst, 60 Hun, 462 ; Mahon v. S.
B. S. Inst., 175 N. Y. 69 ; Podmore v. S. B. S. Bank, 48
App. Div. 218 ; Appdby v. E. C. S. Bank, 62 N. Y. 12 ;
Ficken v. E. I. S. Bank, 33 Misc. Kep. 92 ; Harvey v. Rich-
ards, 1 Mason, 4&1.)
Erwin I. Spink for respondent. A voluntary payment
by a debtor to a foreign domiciliary administrator is a good
payment and discharges the debt, unless it can be impeached
for fraud or bad faith. ( Williams v. Storrs, 6 Johns. Ch.
353 ; Doolittle v. Lewis, 7 Johns. Ch. 45 ; Parsons v. Lyman,
20 N. Y. 103; Peterson v. Chemical Bank, 32 N. Y. 21 ;
Matter of Butler, 38 N. Y. 397 ; Schluter v. B. S. Bank,
117 N. Y. 125 ; Wilkins v. Ellett, 9 Wall. [U. S.] 740 ; 3
1903.] Maas v. German Savings Bank. 379
N. Y. Rep.] Opinion of the Court, per Haight, J.
Redf. on Wills, 26 ; Stevens v. Gaylord, 11 Mass. 256 ; Story
on Conflict of Laws, §§ 515, 515a.) The domiciliary adminis-
trator had apparent authority and right to receive the money ;
lie had the general legal title to all the assets of the decedent
wherever they were situated ; he had the pass book and a law-
ful certificate, and a payment to him, made in good faith, and
with no notice of a claim by any other person, was a valid
payment. {Matter of Front, 128 N. Y. 70 ; Bishop v. 8. S.
Bank, 33 App. Div. 181 ; Boone v. C. Sew. Bank, 84 N. Y.
83.)
Haight, J. Frieda Maas died at her residence in Gutten-
berg, Hudson county, state of New Jersey, on the 15th day
of November, 1898, leaving her surviving a son and daughter,
both minors and residents of the same place. On the 23rd
day of August, 1899, the surrogate of Hudson county, Nevr
Jersey, issued letters of administration upon her estate to
Frederick Maas, a brother of her deceased husband. After
his appointment he presented a certified copy of his letters of
administration to the defendant bank, together with her pass
book, and demanded the payment to him of the amount
which the decedent had upon deposit, and thereupon the bank
paid over such balance to him. Prior thereto, and on the
9th day of March, 1899, the plaintiif Charles Maas, another
brother of the decedent's deceased husband, applied and had
issued to him letters of administration upon her estate by the
surrogate of New York county in this state, and after the
defendant bank had paid the amount on deposit with it to
the administrator appointed in New Jersey, he served a notice
of his appointment upon the defendant and demanded the
payment to him of the amount of such deposit. The bank
having refused, this action was brought to recover the amount
thereof. Upon the trial the facts were agreed upon. It does
not appear that the decedent had any creditors in this state,
and it is conceded that the defendant bank in making its pay-
ment did so in good faith, without actual notice that letters of
administration had been issued in this state. The question
380 Maas v. German Savings Bank. [Nov.,
Opinion of the Court, per Haight, J. [Vol. 176.
thus presented is as to whether the plaintiff, under such cir-
cumstances, can recover.
The succession to, and the distribution of, the estate of an
intestate is governed by the law of the domicile, and where
an administrator has been appointed and has properly quali-
fied in the state of the domicile, he is vested with power to
receive payment of the debts owing to the intestate, and to
take possession of the assets and give proper acquittances
therefor, wherever the debtors or the holders of the assets
may be, within or without the state. But where the debtor
or the holder of the assets is in a foreign jurisdiction and the
debts are not paid or the assets surrendered to the administra-
tor of the place of the domicile of the decedent, the courts of
the foreign jurisdiction will not enforce the redovery of such
debts or assets until the administrator has procured ancillary
letters or a new administrator has been appointed under the
laws of the place where the debts exist or the assets may be.
(Matter of Prout, 128 N. Y. 70-74; Parsons v. Lyman, 20
N. Y. 103 ; Petersen v. Chemical Bank, 32 X. Y. 21 ; Mat-
ter of Estate of Butler, 38\N. Y. 397 ; Despard v. Churchill,
53 K Y. 192 ; Matter of Hughes, 95 N. Y. 55 ; Yroom,
Admifiistratriv, v. Van Home, 10 Paige's Ch. 549 ; Appeal
of Gray, Jr., 116 Pa. St. 250-262 ; Wilkins v. EUett, 9
Wall. 740; Wilkins v. EUett, 108 U. S. 256; JfaUer of
Cape May cfe D. B. ^r. Co., 51 N. J. Law, 78-82; Sehlu-
ter v. Bowery Savings Bank, 117 X. Y. 125.) In the
latter case, Earl, J., in answering the claim that the admin-
istrator derived his authority from the state of New Jersey,
and that a payment could not legally be made to him, says :
" Payment to the personal representative is good, because at
the death of the intestate he becomes entitled to all his per-
sonal property wherever situated, and having the legal title
thereto he can demand payment of choses in action ; and a
payment to him made anywhere, in the absence of any con-
flicting claim existing at the time, is valid. It is true that if
the defendant had declined payment the foreign administrator
could not have brought action in this state to enforce it. But
1003.] Maas v. German Savings 15axk. 381
N. Y. Rep.] Opinion of the Court, per Haioiit, J.
a voluntary payment to such an administrator has always been
held valid. Therefore, in receiving this payment Mr. Knittel
was the representative of the deceased and able to give an
effectual discharge to the defendant." In that case a will of
the decedent was subsequently found and admitted to pro-
bate. It was, however, held that the letters of administra-
tion theretofore issued were not void, and, until they were
revoked, persons dealing with the administrator in good faith
were protected. It is thus apparent that the administrator of
the domicile was vested with the power to collect all of the
outstanding debts owing to the intestate, and that where pay-
ments were made to him in good faith the debt was dis-
charged. So far all of the authorities appear to be in accord.
This narrows the discussion to the question arising out of the
fact that an administrator had been appointed in this state
before the administrator of the domicile had applied for and
obtained the deposit in the defendant bank.
Statutory provisions for the issuing of ancillary letters
appear as early as the first revision of the statutes, and, with
some changes, have been continued to the present time. The
purpose of such letters was undoubtedly intended to aid
foreign executors and administrators in the collection of
claims against persons residing in this state, and to operate as
a protection for home creditors. We consequently have pro-
visions authorizing the surrogate to require security of admin-
istrators sufficient to protect creditors (Laws of 1863, chap.
403) ; and finally the surrogate is authorized by his decree on
final accounting of administrators, after having fully protected
the rights of the creditors within this state, to transmit the
money and other personal property remaining of the decedent,
to the state, territory or county where the principal letters
were granted, to be disposed of pursuant to the laws of that
state. (Code Civ. Pro., §§ 2700, 2701.)
It is thus apparent that the plaintiff upon receiving letters
of administration in this state became entitled to the assets of
his intestate, and had the right to collect from the defendant
the amount she had on deposit in the bank at the time of her
382 Maas v. German Savings Bank. [Nov.,
Opinion rf he Court, per Haight, J. [Vol. 176.
decease. He, however, was required to act with reasonable
dispatch. He could not be permitted to remain silent and
suffer the administrator of the domicile to collect the debts
and carry away the assets, without objection or the disclosing
of his appointment as administrator in this state to the persons
owing the debts or having the custody of the assets, and then
recover from them. As we have seen, the plaintiff was
appointed administrator in this state on the 9th day of March,
1899, and for five months and a half thereafter he remained
idle, taking no steps to give notice to the defendant bank of
his appointment, or to make any demand upon it to pay him
the amount on deposit, until after the administrator of the
domicile had called upon the bank for payment and received
the amonnt due from it to the estate. We, consequently, con-
clude that the act of the bank, in making the payment to him
in good faith without knowledge that another administrator
had been appointed in this state, operated as a discharge of
the indebtedness.
It is contended on behalf of the plaintiff that the defendant
had constructive notice of the appointment of an administra-
tor in this state, arising out of the fact that the appointment
of the plaintiff was a matter of record in the surrogate's
office. We, however, are not inclined to adopt this view.
Such a rule would seriously interfere with the collection of
debts, and would become exceedingly burdensome to debtors.
It might be impossible for them to determine the counties in
the state in which the decedent had personal property. It
would, therefore, become necessary for them to examine the
records of every surrogate's office in the state in order to
determine whether an administrator had been appointed.
The judgment should be affirmed, and judgment absolute
ordered for the defendant upon the stipulation, with costs.
Parker, Ch. J., Gray, O'Brien, Martin and Werner, JJ.,
concur ; Cullen, J., not voting.
Judgment accordingly;
1903.] Grube v. Hamburg- American Steamship Co. 383
N. Y. Rep.] Statement of case.
Minnie Grube, as Administratrix of John Grube, Deceased,
Respondent, v. The Hamburg-American Steamship Com-
pany, Appellant. ,
Negligence — Collision at Sea — Erroneous Refusal to Charge.
Upon the trial of an action against a steamship company for negligence
resulting in the death of plaintiffs intestate, who was drowned as
the result of a collision between a steamship and a pilot schooner on
which he was employed, the defendant is entitled to have the jury
instructed, in substance, that it was the duty of those navigating the
schooner, when approaching another vessel, to have a "lookout" and
keep a man at the wheel and not allow the schooner to drift before the
wind, and a refusal to charge requests to that effect constitutes reversible
error.
Orube v. Hamburg -American Packet Co., 88 App. Div. 686, reversed.
(Argued October 28, 1903; decided November 10, 1908.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered May
27, 1903, affirming a judgment in favor of plaintiff entered
upon a verdict and an order denying a motion for a new trial.
The nature of the action and the facts, so far as material,
are stated in the opinion,
Everett P. Wheeler for appellant. The requests to charge
as to navigation rules express well-settled rules of law appli-
cable to the case at bar, and the defendant was entitled to
have them given. (The Ariadne, 13 Wall. 475 ; The Sun-
nyside, 91 U. S. 208 ; Belden v. Chase, 150 U. S. 674 ; The
Trave, 55 Fed. Rep. 117; The Catalonia, 43 Fed. Rep. 396;
The City of New York, 147 U. S. 72 ; The Philadelphia,
61 Fed. Rep. 862 ; Jacobsen v. D. & N. Co., 114 Fed. Rep.
705 ; The A. W. Thompson, 39 Fed. Rep. 115 ; The Illinois,
103 U. 8. 298.)
Gilbert D. Lamb for respondent. Defendant's exceptions
to the charge of the court cannot be sustained. (Groh v.
Oroh, 2T. Y. L. J. Feb. 21, 1903; McGinley v. Ins. Co., 77
N. Y. 495.)
384 Grube v. Hamburg- American Steamship Co. [Nov.,
Opinion of the Court, per Werner, J. [Vol. 176.
Werner, J. The Appellate Division has unanimously
affirmed the judgment entered upon the verdict for the plain-
tiff herein. Upon the record presented to us we deem it
necessary to discuss only a single question, and that is raised
upon the refusal of the trial court to charge two requests
which we think defendant's counsel was entitled to have sub-
mitted to the jury. A brief statement of the material facts
will disclose the relevancy and importance of these requests.
The action is one for damages for alleged negligence which
resulted in the death of plaintiff's intestate. On the 17th
day of August, 1901, the steamer Aleney owned by the
defendant, and the pilot schooner James Gordon Bennett,
owned by a New Jersey corporation, collided in the vicinity
of Scotland lightship in the harbor of New York, with the
result that the schooner went to the bottom and carried
several of her crew with her. Among those who perished
was plaintiffs intestate. One of the questions litigated was
that of jurisdiction, which depended upon conflicting evi-
dence, and which, upon the record before us, the unanimous
affirmance below has- concededly and conclusively resolved in
favor of the plaintiff. Another contested question was that
of defendant's alleged negligence, and this in turn depended,
in some degree, upon the existence or absence of negligence
in the sailing of the schooner, in the wreck of which plaintiff's
intestate lost his life. Defendant contended, and introduced
evidence tending to prove, that at the time of the collision
there was no one at the wheel of the schooner, and that she
had no " lookout." This was controverted by evidence tend-
ing to show that all hands were on deck of the schooner with
the exception of four pilots and the steward, the plaintiff's
intestate.
As it is conceded that plaintiff's intestate was free from
contributory negligence, the trial court correctly charged that
concurring negligence in the navigation of both vessels would
not defeat plaintiff's right to recover, because if that were the
fact, she could bring her action against either or both of the
guilty parties. But, on the other hand, it is obvious, even
1903.] Grube v. Hamburg- American Steamship Co. 385
N. Y. Rep.] Opinion of the Court, per Werner, J.
upon the rather nebulous state of the record with refer-
ence to the relative positions of the vessels just before the
collision, that the question of defendant's negligence depended
somewhat upon the degree of care exercised in the navigation
of the schooner. It was, therefore, important that any request
bearing directly upon that subject should have been explicitly
charged.
The requests referred to were as follows : " 4. When the
schooner had changed her course and headed to the westward it
was Captain Mix's duty to keep a man at the wheel and not
allow her to drift before the wind."
"5. It was also his duty to keep a lookout after the
schooner had changed her course and was headed to the
westward."
Upon these requests the court charged : " It is the claim of
the defendant that at the time of the accident there was no
one at the wheel of the schooner and that there was no look-
out. It is for you to say, in the light of all the evidence, just
what the facts are, and if you find them to be as claimed by
the defendant, it is still for you to say whether those omissions,
if they were omissions, contributed to the happening of the
accident."
We are inclined to the view that this charge did not fairly
and fully cover the requests, and that the defendant was enti-
tled to have a charge substantially in the language of the
requests. While, as we have said, negligence on the part of
those in charge of the schooner would not necessarily absolve
those in command of the steamer from the charge of negli-
gence, yet the questions of separate and concurring negligence
were so interdependent that the rules of law pertaining to
these questions, above all others, should have been clearly and
precisely stated to the jury. As an abstract proposition it
goes without saying that the duties of wheelman and lookout
upon vessels navigating the high seas are of the highest
importance, and in cases of collision their conduct is always
the subject of minute scrutiny. As applied to the case at bar,
the effect of the alleged absence of two such important func-
25
386 Matter of Garver. [Nov.,
Statement of case. [Vol. 176.
tioriaries in the management of the schooner presented* of
course, a question for the jury, but the defendant had the right
to a proper charge upon that subject.
It would undoubtedly be going too far to say that the
refusal of the court to charge as requested was clearly con-
trolling of the verdict found, and yet it would not be going
far enough to arbitrarily assume that it had no effect whatever.
Therefore, we think the refusal to charge as» requested was
error for which the judgment herein should be reversed and a
new trial granted, with costs to abide the event.
Parker, Ch. J., Gray, O'Brien, Haight and Cullen, JJ.,
concur ; Martin, J., not voting.
Judgment reversed, etc.
In the Matter of the Application of John A. Garver, as
Assignee of J. B. Brewster & Co., Appellant, for the
Appointment of a Referee.
Fifth National Bank of the City of New York et al.,
Respondents.
1. Election of Remedies. Whether or not there has been an election
of remedies is determined by the commencement, not by the result of
an action.
2. Assignment for Creditors — Res Adjudicata. The commence-
ment of an action by a judgment-creditor to set aside an assignment for
the benefit of creditors on the ground of fraud does not constitute an
election by him to take in hostility to the assignment within the doctrine
of the election of remedies; and although he is successful as to a portion
of the property transferred to the assignee, if the judgment results in no
benefit to him, he may take under the assignment notwithstanding his
attack upon it, and the judgment constitutes no bar to such relief.
Matter of Garter, 84 App. Div. 262, affirmed.
(Argued October 7, 1903; decided November 10, 1908.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered June
22, 1903, which affirmed an order of Special Term denying a
motion for the appointment of a referee to hear and determine
disputed claims.
1903.] Matter of Garver. 387
N. Y. Rep.] Statement of case.
On or about October 11, 1895, J. B. Brewster & Co. exe-
cuted an instrument in writing purporting to be a general
assignment for the benefit of creditors, with preferences, to
John A. Garver, appellant in this proceeding. Under such
instrument Garver took possession of the property of J. B.
Brewster & Co., consisting of machinery, fixtures, carriages and
other personal property.
In order to set aside this assignment with preferences the
respondents commenced actions against the corporation, its
general assignee and the preferred creditors, in aid of their
outstanding executions, and a stipulation was made that these
actions should abide the result of the actions commenced by the
Home Bank, which actions are as follows :
On or about November 18, 1895, the Home Bank com-
menced an action against John A. Garver, impleaded with
J. B. Brewster & Co. and others, to have the said general
assignment set aside as fraudulent and void as to it. Judg-
ment therein was finally obtained declaring the assignment
fraudulent and void as to the bank, and providing for the
appointment of a receiver. Before the above judgment was
obtained a temporary receiver was appointed, who, on entry
of judgment, rendered an accounting and turned over all the
property in his hands to the permanent receiver appointed
under the judgment, who retained the same until the Appel-
late Division modified the judgment by striking out all pro-
visions relating to the appointment of a receiver, affirming it
in all other respects. The property coming into the hands of
the temporary receiver was the non-leviable property and
such leviable property as was left after the expenditure by the
assignee of about $7,000 in payment of wages of employees.
Among the non-leviable property was an insurance policy
on the life of J. B. Brewster for $50,000, upon which the
corporation had procured a loan of $16,000, subject to which
loan the policy had been assigned to James B. Cone. This
assignment was declared void by the judgment before men-
tioned. The temporary receiver sold some of the leviable
property to the amount of $5,000, and paid that amount upon
388 Matteb of Garvke. [Nov.,
Statement of case. [Vol. 176.
the loan of $16,000. The permanent receiver sold more of the
leviable property to the amount of $1,375.05, at the instance
of the Home Bank, to pay a premium on the policy, leaving
little or no leviable property and about $2,000 in cash and the
policy as the sole assets. This policy has since been paid to
the assignee, J. B. Brewster having died.
On the accounting of the permanent receiver, the referee
found that the Home Bank had no lien on the non-leviable
property, including the insurance policy, and directed that all
the property be restored to the general assignee. The bank
then tried to reach the insurance policy, but was unsuccessful.
It then commenced another action against the general
assignee and joined the sheriff as a nominal party, for the
purpose of obtaining an adjudication that it, by reason of
previous judgments, had a lien upon all the then leviable
property and also upon the proceeds of certain leviable prop-
erty which the assignee had in his hands.
This action was dismissed upon the ground that the issue
involved had previously been determined. Claims were then
filed with the assignee, and allowances claimed prorata. The
assignee refused to allow the claims, and made application to
the court for a referee to determine the validity of the claims.
The court denied the application for a reference, and adjudi-
cated the claims to be valid, and ordered the assignee to
receive and file the claims.
The appellate Division sustained their decision, and it is
from that order this appeal is brought to this court.
James M. Beck for appellant. Where there exists an
election between inconsistent remedies, a litigant is confined
to the remedy which he first adopts. (Bigelow on Estoppel,
673; Morris v. IZexford, 18 N. Y. 552; Rodtrrrumd v.
Clark, 46 K Y. 354 ; Kinney v. Kiernan, 49 N. Y. 164 ;
Steinbach v. li. Lis. Co., 77 N. Y. 498 ; Fields v. Bland, 81
N. Y. 239.) This election is made when the remedy is
invoked by the commencement of some legal proceeding.
{Burns v. JYevins, 27 Barb. 493 ; If orris v. Rexford, 18 N.
1903.] Matter of Garter. 389
N. Y. Rep.] Opinion of the Court, per Parker, Ch. J.
Y. 552; Terry v. Mungw, 121 N. Y. 167; Heidelbaeh v.
Bank, 87 Hun, 117 ; Ins. Co. v. Lawrence, 14 Johns. 55 ;
Steinbach t. Ins. Co., 77 M". Y. 498 ; iton& of Oswego t.
Burt, 93 N. Y. 233 ; Am v. Jfotfor, 46 N. Y. 689 ; Fowler
v. 5. S. Bank, 113 N. Y. 450 ; Allen t. Roosevelt, 14 Wend.
100.) In the case at bar the creditors, having obtained a
judgment that the assignment is invalid, seek to repu-
diate that judgment and to claim that the assignment is
valid. This they cannot do under the doctrine of res adjudir
cata. (Herman on Res Adjudicata, § 133 ; Steinbach v. Ins.
Co., 77 N. Y. 498 ; Fields v. Bland, 81 N. Y. 237 ; People
v. Chalmers, 60 N. Y. 154; Matter of Cantor, 31 App. Div.
19.) The claimants received a substantial benefit as a result
of claiming adversely to the assignment. {Home Bank v.
Brewster, 15 App. Div. 338 ; Matter of Ginsberg, 21 App.
Div. 525.)
Henry B. Twombly, William B. Putney and Richard B.
Kelly for respondents. The creditors had the right to test
the validity of the assignment to Garver and to seek to give
their judgments priority, but receiving nothing as a result of
said actions they had a right to prove their claims as creditors.
{Mills v. Parkhurst, 126 N. Y. 89 ; Sternfeld v. Simonson,
44 Hun, 429 ; Bishop on Insol. Debtors, § 252.)
Parker, Ch. J. The banks which are respondents herein
were judgment creditors of J. B. Brewster & Co., a corpora-
tion which made a general assignment for the benefit of cred-
itors, with preferences. An action was brought by one in
behalf of all in aid of their outstanding executions, praying
that as against plaintiff the assignment and all preferences
therein should be declared null and void as to leviable prop-
erty. Judgment was granted for the relief asked for in the
complaint and a receiver was appointed, and was authorized
to and did take control of the property from the assignee.
Subsequently the greater part of the leviable property was
sold and the avails thereof devoted in the main to the pay-
390 Matter of Gakvek. [Nov.,
Opinion of the Court, per Parker, Cli. J. [Vol. 176.
ment of employees — who were entitled to be paid first by
statute — and in paying a premium loan of $16,000 on a
policy of $50,000 upon the life of J. B. Brewster, obtained
for the benefit of the corporation, the policy being subject to
that lien when assigned to one Cone. The assignment to
Cone was, by the judgment to which we have referred, set
aside, and it became necessary to pay the moneys advanced
by Cone in order to secure the benefit of the policy to the
creditors of the corporation. The proceeds of this policy,
collected upon the death of J. B. Brewster, constituted all the
assets of the estate that remained for distribution among the
judgment creditors.
The Appellate Division modified the judgment by striking
out the appointment of a receiver, and requiring him to turn
over the moneys in his hands to the general assignee ; but in
all other respects the judgment was affirmed. The effect of
this modification — after the personal property had been sold,
and the avails disposed of, as pointed out — was to prevent
the banks from receiving anything on account of their execu-
tions, for there was no loager any leviable property.
By this blunder in procedure the leviable property had
been disposed of for the benefit of the assigned estate, and
hence the only way open to the banks, which had prosecuted
the litigation resulting in a fund to be distributed among the
creditors, where otherwise there would have been none, was
to present their claims to the assignee. But the assignee
seemed to think they ought not to share with the general
creditors — the beneficiaries of the banks' vigilance in prose-
cuting an action resulting in the setting aside of the assign-
ment to Cone, And making necessary the distribution of the
net proceeds of the policy. So the assignee took steps under
the statute to have the court determine whether the judg-
ments of the banks should be admitted as claims against the
assigned estate.
The assignee made no question about the validity of those
claims as against J. B. Brewster & Co. He could not well
have done so, for they were established by judgments. Nor
1903.] Matter of Garver. 391
N. Y. Rep.] Opinion of the Court, per Parker, Ch. J.
did he claim that they had been wholly or partly paid, nor
that it was inequitable that the banl^s should share in the dis-
tribution of money which, but for their action, would not have
been available for distribution. Instead the assignee claimed
there was a rule of law which, applied to the facts detailed,
would prevent the banks from obtaining an equitable share of
the remaining assets.
The doctrine of election of remedies was invoked to work
out the result the assignee seemed to desire. And if it be
true that when the general assignment was made it became
necessary for the banks to determine whether they would take
under the assignment or in hostility to it, then the assignee's
objection was well founded, for the banks, promptly discover-
ing that their claims would not be paid under the general
assignment, made an attack upon it to the extent, at least, that
it transferred the leviable property to the assignee.
Now whatever may be the rule in other jurisdictions it is
not the law in this state that the commencement of an action
to attack the validity of an assignment operates to deprive the
party commencing such action from sharing with other general
creditors in the proceeds of the assigned estate in the event
that such action shall prove fruitless in result.
That question was before this court and carefully considered
in Mills v. ParkhuT8t (126 N. Y. 89), in which case certain
judgment creditors of an insolvent debtor brought an action
to set aside as fraudulent his assignment for benefit of cred-
itors, in which they were eventually defeated. While an
appeal was pending in this court from a* judgment dismissing
the complaint proceedings were taken to distribute the assigned
estate, and objection was made by other creditors to the allow-
ance of the claims of those judgment creditors upon the
ground that they were proceeding in hostility to the assign-
ment in prosecuting their action. The trial court and the
General Term were persuaded that the doctrine of election of
remedies was applicable to the situation, and refused to allow
the judgment creditors to share in the estate ; but in this
court it was held that the doctrine had no application. The
392 Matter of Garver. [Nov.,
Opinion of the Court, per Parker, Ch. J. [Vol. 176.
kernel of the very careful and somewhat elaborate reasoning
by which the conclusion was logically established was that the
doctrine of election of remedies applies to cases where there
is by law or by contract a choice between two remedies which
proceed on opposite and irreconcilable claims of right ; in such
a case, a party having resort to one remedy is bound by his
first election, and hence barred from the prosecution of the
other. But an assignment for the benefit of creditors is in no
Bense a contract between the debtor and his creditors, and does
not depend for its validity in law upon their assent ; where a
debtor has acted without fraud in fact or in law, and has com-
plied with the requirements of the statute, the assignment will
stand notwithstanding the opposition of a creditor, and by such
opposition the latter is not deprived of his right to a dis-
tributive share under it. And it is undoubtedly true, as the
learned judge said who wrote the opinion, that a contrary rule
"would come so near to lending aid and encouragement to
attempts at fraudulent assignments as to render its adoption
impossible." The discussion of the court in that case is
alike applicable to this one, and the decision is in point and
controlling.
It is suggested, however, that it is possible to found a dif-
ferent ruling in this case from the one made in Mills' case
upon the fact that in Mills1 case plaintiffs were unsuccessful,
while in this case plaintiff succeeded. In other words, that
where a judgment creditor elects, without justification, to
attack the general assignment upon the ground that the assignor
intended to cheat and defraud creditors, his claim may share
in the estate after the judgment has gone against him, but if a
judgment creditor successfully attacks a general assignment
on the same ground he may not share in the distribution of a
fund which may be the result of such litigation.
It has been argued that while in the first case it can no
longer be said in this state that there was an election of rem-
edies because Mills' case has so decided, it may, nevertheless,
be said in the latter case, because in Mills'' case plaintiffs
failed to show the fraud, while in this case plaintiff succeeded.
1903.] Matter of Garveb. 393
K. Y. Rep ] Opinion of the Court, per Parker, Ch. J.
But argument — if any there be to offer — in support of
such position is fully met by authority, though it would hardly
seem that authority is necessary to support the proposition
that whether there has been an election of remedies is not
determinable by the result of the suit, but is by its
commencement.
In Moller v. Tuska (87 K Y. 166) plaintiffs sold and
delivered a quantity of sugar to parties who immediately
transferred it to defendants, and then went into voluntary
bankruptcy. Plaintiffs immediately brought action to recover
possession of the goods on the ground of fraud, but whileHhe
action was pending proved a claim in bankruptcy as for goods
sold and received from the assignee in bankruptcy a dividend
thereon. Later the register in bankruptcy expunged the
claim from the record on the ground that the action brought
by plaintiffs was in disaffirmance of the sale, and thereafter
demanded and received back the dividend. Subsequently in
the action brought against the transferee to recover possession
of the goods, a motion was made to dismiss the complaint on
the ground that by proving the claim in bankruptcy and tak-
ing the dividend plaintiff affirmed the sale and had no longer
any right to the goods. The motion was granted, but the
General Term and this court were of a different opinion, the
ground of the decision being that as plaintiffs had on discovery
of the fraud an election of remedies — either to disaffirm the
sale and recover the property or to sue for the principal —
they manifested their election by bringing the action to
recover the possession of the goods, and were bound by such
election, and while they subsequently presented their claim
to the assignee, who accepted it and paid a dividend thereon,
nevertheless, because of the election necessarily made by
plaintiffs in the commencing of their action, there was no
debt on the part of the estate in bankruptcy to them, and the
assignee was without power by his acceptance of the claim
and payment of a dividend to create a debt where none
existed, and hence could not affect the estate by an attempt
to assent to a rescission of the election.
394 Matter of Garver. [Nov.,
Opinion of the Court, per Parker, Ch. J. [Vol. 176.
It is, therefore, the settled law of this court that an election
of remedies is determined by the commencement of an action,
and not by the result of it, and Mills1 Case {supra) requires
the holding that the commencement of an action to set aside
an assignment on tjie ground of fraud does not constitute an
election to take in hostility to an assignment, within the doc-
trine of election of remedies, and hence a creditor may take
under the assignment notwithstanding his attack upon it.
Since the foregoing was written it has been suggested for
the first time that it is not after all the doctrine of election of
remedies that has been invoked, but a remedy without a name
that works out the same result. It is conceded that this new
remedy could not be applied in Mills9 Case {supra\ and it
should be conceded that if it could not be applied in that case
it should not be in this, for very obvious reasons. The only
difference between that case and this is, that in that one the
action failed, in this it succeeded — which means that in that
case the assignor was not guilty of fraud, while in this case
the assignor was adjudged guilty of fraud. But in the first
case the court pointed out that the creditor should not be
deprived of his share of the assets for bridging an unsuccess-
ful litigation, because to do so would lend " encouragement to
attempts at fraudulent assignments." It is safe to say that
that reason is certainly as applicable to a case where the fraud
both exists and is proved. Otherwise the legal situation
would be : It is well to bring an unsuccessful action at great
cost to the fund in order to discourage fraud ; but it is not
well to discourage fraud too much, so be careful not to estab-
lish it, for a penalty is visited upon one who brings such an
action and succeeds.
It is said that the doctrine of res adjudicatahau applica-
tion to this situation, and will so operate as to deprive plain-
tiff of its share of the fund that would have no existence but
for its litigation.
There have been two adjudications prior to this one. In
the first place it was adjudicated between J. B. Brewster & Co.
(before the assignment) and the Home Bank that J. B. Brew-
1903.] Matter of Garver. 395
N. T. Rep.] Dissenting opinion, per Bartlett, J.
ster & Co. was indebted to it. The judgment into which that
litigation ripened stands. Its validity as an adjudication is
not challenged, and cannot be ; and it has never been paid.
That being so, the court has no power to deprive the plaintiff
in that judgment of its share in the general assets of J. B.
Brewster & Co., for the judgment establishes the claim, and
carries upon its face the right to 6hare with other claims in
the assigned estate.
The second adjudication was made in an action brought by
the Home Bank against the assignor, J. B. Brewster & Co. and
the assignee, and it adjudges that the assignor was guilty of
fraud which rendered the assignment void as to the bank, and
set aside a transfer of a policy of insurance, a part of the pro-
ceeds of which constitute the entire assets now to be dis-
tributed. While the court adjudged necessarily that the bank
had the right to pursue the remedy which it did, it did not
attempt to determine that the bank had no other remedy, and
that should it fail to secure money enough by that proceeding
to satisfy its claim, it could not resort to other proceedings to
reach the property, if any should be discovered, of the
assignor, and to share in the distribution of the assigned
estate ; and that being so, it is difficult to see how it can be said
that the judgment in that action affects in any way the valid
judgments which the bank now properly insists should share
in the distribution of the fund among the general creditors.
The order should be affirmed, with costs.
Bartlett, J. (dissenting). A reference to some facts, in
this complicated case, is essential for the purpose of making
clear the points I seek to raise. The chronology is import-
ant. The firm of J. B. Brewster & Company, carriage manu-
facturers in the city of New York, made a general assignment
for the benefit of creditors to John A. Garver on the 11th day
of October, 1895. Prior to that time several banks and the
Spring Perch Company, creditors of the assignors, had recov-
ered judgments at law on their claims and issued executions
which were then outstanding in the hands of the sheriff.
396 Matter of Gakvek. [Nov.,
Dissenting opinion, per Bartlett, J. [Vol. 17<L
Shortly after the execution of the general assignment and
transfers these judgment creditors brought separate actions in
equity attacking the general assignment and other transfers
of property as fraudulent ; also in aid of the executions in the
hands of the sheriff, it being alleged that the general assign-
ment and other transfers were obstacles to making the levy
upon 6uch of the assigned property as was subject thereto.
It was thereupon stipulated that the suit of the Home Bank,
which was begun in November, 1895, should be tried and the
others abide the result.
It was conceded at the trial of this latter suit that the
assignee was not guilty of intentional fraud in connection with
said assignment and transfers in which he was concerned.
The suit of the Home Bank resulted in a decision setting
aside the general assignment and transfers attacked as fraudu-
lent, as to the bank, thus removing all obstacles to an imme-
diate levy of the executions.
It is at this point that we encounter irregularities of practice
resulting in wasting the assets of this estate to a very large
extent. The Special Term judgment under this decision was
entered on July 10th, 1896. The plaintiff erroneously treated
the action as a judgment creditor's suit after execution
returned unsatisfied instead, as it really was,* an action to
remove obstacles to the levying of executions outstanding
under judgments at law. The result of this error was the
entry of a judgment which extended the temporary receiver-
ship (a temporary receiver having been appointed, pendente
lite, at the time the action was begun) to a permanent receiver-
ship then created of all the property of the assignors, includ-
ing non-leviable property, over which the court had no juris-
diction in that action. The judgment further provided that
the temporary receiver should account and pay over to the
permanent receiver the assets in his hands. Upon appeal the
Appellate Division modified this judgment by striking out the
provisions as to a receivership, thereby leaving the judgment
in proper form, the leviable property to be redelivered to the
assignee " to the end that the plaintiff may levy its executions
1903.] Matter of Garvjsr. 397
N. Y. Rep.] Dissenting opinion, per Bartlett, J.
upon such property and sell the same to satisfy such execu-
tions or judgments upon which they were issued." The judg-
ment was so amended by the Appellate Division May 4th,
1897.-
It thus appears that at the time of the Special Term judg-
ment, July 10th, 1896, the judgment creditors were at liberty,
had they followed the proper practice, to issue their executions
against the leviable property, and a similar opportunity was
afforded them when the Appellate Division modified the judg-
ment, as above stated, May 4th, 1397.
It is apparent that these judgment creditors were not con*
tent to follow leviable property which was in existence at that
time, but were reaching out for assets that could not be dealt
with in aid of the executions. After the Special Term judg-
ment had been so modified the plaintiff entered an order of
reference to take and state the accounts of the permanent
receiver. The referee in this accounting made his report
December 2nd, 1897, in which he found, among other things,
that the plaintiff had no lien upon the non-leviable assets,
including a life insurance policy for $50,000 on the life of
J. B. Brewster, and directed all the property to be restored
to the assignee. Thereupon the plaintiff made a motion at
Special Term to set aside and disaffirm the report of the
referee. At the same time a motion was made by the assignee
to overrule the exceptions and confirm the report. The Spe-
cial Term sustained the exceptions of the plaintiff and directed
the permanent receiver to pay to the sheriff of the county of
New York the balance of cash in his hands, to be applied on
account of plaintiff's executions, and to deliver to the sheriff
carriages and lumber to the end that the same might be sold
to satisfy the executions. It was further ordered that the
receiver should deliver the policy of insurance to the defend*
ant upon receiving the sum of $6,272.25 from the proceeds
thereof. The defendant appealed from this order to the
Appellate Division, where it was reversed, and the report of
the referee in all respects confirmed. (33 App. Div. 330.)
The plaintiff appealed from this latter order to the Court of
398 Matter of Garver. [Nov.,
Dissenting opinion, per Baktlett, J. [Vol. 176.
Appeals, where the appeal was dismissed on the ground that
it was an order in the action and not appealable. (159 N. Y.
526.) This order was entered about April 25, 1899.
Early in November, 1898, after the Appellate Division had
confirmed the report of the referee, the permanent receiver,
after the defendant had made a motion to punish him for con-
tempt for failure to comply witli the directions of the referee's
report, paid over to the assignee the sum of $866.86, and also
delivered to him certain carriages. We thus have leviable
assets in the hands of the assignee at this time.
It appears that on November 18th, 1898, after due notice,
the assignee sold all of said carriages at public auction, receiv-
ing therefor the sum of $2,219.90, 'which shows clearly the
amount of leviable assets in the hands of the assignee, and
which, with a quantity of lumber, had theretofore been in the
possession of the permanent receiver ever since the Special
Term judgment of July 10th, 1896. During this entire period
there wa6 no obstacle to levying under the executions.
It is argued that the leviable property having been dis-
posed of for the benefit of the assigned estate, these judgment
creditors, who had prosecuted litigations resulting in a fund
to be distributed among the general creditors where otherwise
there would have been none, are entitled to come in and share
therein with the other general creditors. A few more facts
will shed light at this point. Prior to the judgment of
July 10th, 1896, the court made an order upon the joint affi-
davit of the temporary receiver and assignee, authorizing
them to pay out of the funds in their possession the sum of
$16,000.00, constituting a lien on the said policy of life insur-
ance, together with interest thereon, and to hold the policy
jointly during the pendency of the action ; the interest
amounted to $1,048.00. This sum of $17,048.00 was accord-
ingly paid to the American Deposit and Loan Company, the
temporary receiver contributing $5,000.00 and the assignee
$12,048.00. The temporary receiver and the assignee were
at that time in joint control of the estate, the action not hav-
ing proceeded to judgment in the Special Term.
1903.] Matter of Garver. 399
N. Y. Rep.] Dissenting opinion, per Bartlbtt, J.
It appears in the accounting of the permanent receiver
before the referee that the assignee advanced the further sum
of $3,662.76 on account of premiums due on the said policy,
making with said sum of $12,048.00 the total of $15,710.76
that lie advanced to protect the policy.
It is thus established that the assignee had made the greater
part of the advances necessary to protect the policy of life
insurance, and would have had no difficulty in caring for the
same entirely had it not been for the fact that he was improp-
erly deprived of the full control of the possession of the
assigned estate by a judgment that was unauthorized by law
and was practically set aside by the Appellate Division, that
learned court having declared the receivership and the removal
of the estate from the assignee's control to be wholly irregular.
I have before stated that the erroneous practice of the plain-
tiff in the Home Bank case had to a great extent wasted this
estate. The attorney for the temporary receiver was awarded
the sum of $1,028.30 for counsel fee and disbursements ;
the attorney for the permanent receiver was awarded the
sum of $1,118.38 as counsel fee and disbursements; the ref-
eree received the sum of $300.00 for his services ; the
assignee also states in his affidavit in this proceeding that the
estate has been put to other very great expense by reason of
the litigation arising from this irregular practice.
These general statements of the assignee will be better
appreciated when it is understood that the Home Bank began
a second action against the assignee and the sheriff of the
county of New York, wherein it demanded, in a complaint
verified December 20th, 1899, the following relief: (1) That
it may be adjudged and determined that the plaintiff the
Home Bank had and has a lien upon all leviable property of
said J. B. Brewster & Company, which has come into the
hands or possession of the defendant Garver, and which was
in the city and county of New Fork at the time of the issuing
of the several executions hereinbefore referred to, and that the
said lien attach to and follow the proceeds of the said leviable
property which has come into the possession of the said
400 Matter of Garver. [Nov.,
Dissenting opinion, per Bartlett, J. [Vol 176.
defendant Garver ; (2) that the defendant Garver Account for
and deliver and pay over to the sheriff of the county of New
York all said leviable property or its proceeds as may be suf-
ficient to satisfy the said executions upon the judgments
recovered by the plaintiff against J. B. Brewster & Company
hereinbefore set forth ; (3) for further relief.
The action was carried through the courts with this result :
The Special Term dismissed the complaint; the Appellate
Division and this court affirmed the judgment. (172 N. Y.
632, without opinion.)
The facts of this case thus disclose that the judgment cred-
itors, throughout all of these litigations, were confined simply
to their remedy to reach leviable assets ; that they failed to
properly pursue it and neglected to lay hold of such assets in
the possession of the permanent receiver and the assignee
when no obstacles stood in their way of enforcing the execu-
tions in the hands of the sheriff. It remains to consider
whether on this state of facts, these judgment creditors are
estopped, by years of wasting litigation, from proving their
debts as general creditors in the assignment proceedings.
It has been frequently held that a creditor who receives
any benefit under a general assignment cannot afterwards
attack it. It would seem, from parity of reasoning, that a
creditor who has successfully attacked the assignment and
other transfers and had them set aside as fraudulent as to him ;
who has had the way opened to him to enforce his executions
at law, and who has failed to realize valuable assets because
he did not avail himself of the remedy at law placed in his
hands, should also be estopped.
It is apparent that the technical rule as to election of
remedy, illustrated by a long line of decisions, has no applica-
tion to the present case. I refer to those authorities which
deal with parties between whom existed a relation created by
contract, and in some of which the plaintiff rescinded the
contract and brought replevin for goods procured by fraud
and in others stood upon the contract. {Morris v. Rexford,
18 N. Y. 552 ; Kinney v. Kiernan, 49 N. Y. 164 ; Motter v.
1903.] Matter of Garver. 401
N. Y. Rep.] Dissenting opinion, per Bartlett, J.
Tuska, S7 N. Y. 166 ; liodermund v. Clark, 46 N. Y. 354,
and many other cases.)
In the case before us the relation between the parties is not
contractual, but is created by law — by the statute which
provides for the execution of general assignments for the
benefit of creditors and the distribution of estates thereunder.
This court has held (Mills v. Parkhurst, 126 N. Y. 89)
that it should be open to any creditor to attack the general
assignment on the ground of fraud, and if he fails he may,
notwithstanding this futile effort, prove his debt in the
assignment proceeding.
This decision obviously rests on considerations of public
policy which permit the attack and the further fact that the
attacking creditor had not disturbed the assignee in the
custody and management of the estate, as he was defeated.
In such a case there is no election of remedy by the mere
beginning of the action, as the rights of the creditor are
determined by the result of the action. If he fails he may
still prove his debt under the general assignment. If the
creditor succeeds in his action and enters final judgment, what
is the logical, legal result ? In beginning his action, as we
have seen, he is not held to the strict rule of election of
remedy, but he must abide the result.
In the case before us the plaintiff is confronted by its own
final judgment securing to it the relief for which it sued,
to wit, the removal of obstructions to its execution in the
hands of the sheriff and permitting that officer to levy on all
personal property subject thereto. The plaintiff is thereby
estopped by the doctrine of res adjudicata / it is not a question
of election of remedy, but a remedy exhausted, pursued to a
final judgment of record, declaring the general assignment
void as to it and granting the relief for which it prayed. A
judgment bars any action or proceeding inconsistent with its
provisions. (Steinbaehx. Itelisf Fire Ins. Co., 77 N". Y. 498;
Fields v. Bland, SI K Y. 239.)
In the case 77 N. Y. 49S {supra) it was held that when a
party has elected to sue upon a written contract and has been
26
402 Matter of Garver. [Nov.,
Dissenting opinion, per Bartlett, J. [Vol. 176.
defeated, he cannot thereafter bring an action to reform the
contract. Judge Earl said (p. 502) : u This is a case, it seems
to me, where the doctrine of res adjtidicaUi must apply, and
bar a recovery, unless plain principles of law, which have
always been regarded as important in the administration of
justice, are disregarded."
In the case at bar the plaintiff came into court and said, in
substance, it had a judgment at law, with execution in the
hands of the sheriff; the general assignment was an obstacle
to a levy ; its removal was asked. The court by judgment
granted this relief, and must not the doctrine of res adjudi-
cata be applied, unless plain principles of law are disregarded?
The uncontradicted facts of this case, already recited, show that
for a long period of time the plaintiff failed to levy on per-
sonal property when it might have done so, every obstacle
having been removed by the decision and judgment of the court.
No case has been called to my attention in this court hold-
ing that where a creditor has proceeded to final judgment and
succeeded in having a general assignment declared fraudulent
as to him, he having received substantial benefits under his
judgment, or was entitled to the same, that nevertheless he
could come in as a creditor and prove his claim thereunder.
Two cases in this court were cited by the courts below in
favor of the plaintiff. In the case of Mills v. Parkhurst
(126 X. Y. 89) a creditor sought to prove his claim after
having failed in his attack upon the assignment. All that
was actually decided, or could be determined, was that such a
creditor might prove his claim, notwithstanding his unsuccess-
ful suit. The court said (p. 95) : " A creditor^ only alterna-
tive, if he is not content to take what would thus come to
him, is to endeavor to set aside the deed or assignment if he
deems himself possessed of the requisite evidence of its
invalidity at law. If there is any election for him to make
it can only be with respect to what remedies may be available
to him in order to right himself upon his judgment against
the assignee and to avoid the assignment. * * * It in no
wise militated against the right of the appellant, if defeated
1903.] Conolly v. Hyams. 403
N. Y. Rep.] Statement of case.
upon that issue, to uhare in the assigned estate on the basis of
the distribution provided in the debtor's deed to his assignee."
The reasoning of this opinion clearly recognizes the possi-
bility of a Situation where a creditor, succeeding in his attack
upon the assignment, may place himself in a position which
would preclude him from proving his claim.
The case of Groves v. Rice (14S X. Y. 227) is distinguish-
able in its facts from the case before us. In that case the
creditor was held to have so recognized the assignment, for the
pnrpose of gaining an advantage thereunder, that he was estop-
ped from attacking it. It is a case where the doctrine of estop-
pel was applied in order to protect the assignee and creditors.
In the case before us the doctrine of res adjudieata controls.
I am of opinion that the fund now in the hands of the
assignee is only a small residue, preserved to the estate, not-
withstanding the litigations of the judgment creditors, by the
persistent efforts of the assignee to save something for the
general creditors after the unwarranted and unnecessary
receiverships, accountings and unauthorized actions had run
their asset-wasting course.
The orders of the Special Term and Appellate Division
should be reversed and the claims of the respondents dis-
allowed, with costs.
O'Brien, Martin, Cullen and Werner, JJ., concur with
Parker, Ch. J. ; Vann, J., concurs with Bartlett, J.
Order affirmed.
Henry A. Conolly, as Surviving Partner of the Firm of E.
D. Conolly & Sons, Respondent, r. Rosalie Hyams,
Individually and as Executrix of Joel E. Hyams, Deceased,
Appellant.
Mechanic's Lien — Action to Foreclose Lien — When Action-
Commenced Within One Yeah After Filing Lien Is Dismissed fou
Lack of Evidence a New Action May Be Commenced under Codu
Civ. Pro. § 400, Within One Year After Final Determination of
First Action. Where a mechanic's lien was filed January 24, 1889, and
404 Coxolly r. Hyams. [Nov.,
Statement of case. [Vol. 176.
ail actiou to foreclose the lien, duly commenced February 15, 1889, was
dismissed "ou the merits," for failure to furnish an architect's certificate
of performance of the work, by a judgment entered August 4, 1899, and,
on appeal, the Appellate Division, on March 9, 1900, modified the judg-
ment by striking therefrom the words "on the merits," and affirmed it as
modified, a new action to foreclose the lien, commenced March 15, 1900,
is not barred by the provision of the Lien Law, that a lien shall not con-
tinue for a longer period than one year after the notice of lien has been
filed, unless within that time an action is commenced to foreclose the lien,
since the statute does not in express terms prohibit an actiou to foreclose
a lien unless that action be commenced within one year, but enacts that
the lien shall cease unless an action be brought thereon within one year;
the first action was commenced within that time, and, therefore, the cause
of actiou is saved by the statute (Code Civ. Pro. § 405), which provides
that if an action be commenced within the time limited therefor, and be
terminated in any other manner than by a voluntary discontinuance, a dis-
missal of the complaint for neglect to prosecute the action or a final judg-
ment upon the merits, the plaintiff may commence a new action for the
same cause after the expiration of the time so limited and within one year
after such reversal or termination.
Conolly v. Hyams, 84 App. Div. 641, affirmed.
(Argued October 29. 1903; decided November 10, 1903.)
Appkal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered July
6, 1903, affirming a judgment in favor of plaintiff entered
npon a decision of the court on trial at Special Term.
The nature of the action and the facts, 6o far as material,
are stated in the opinion.
M. S. Guitcrman for appellant. Section 405 of the Code
of Civil Procedure, permitting in case of dismissal of the
complaint, but not on the merits, the commencement of a new
action after the expiration of the limitation, does not apply to
an action brought under a special law creating a right of
which time is the essence and forms a constituent element.
ill ill v. Bd. of Sujyrs., 119 JST. Y. 344: ; Hamilton v. It. Lis.
(fo.% 15G X. Y. 327 ; Weyer v. Beach, 79 N. Y. 409 ; McDon-
ald v. Mayor, etc., 58 App. Div. 73.) When a claim secured
by mechanic's lien has become barred by the Statute of Limi-
tations, a lien cannot be enforced. {Hills v. Jfal/iwelf, 50
Conn. 270.)
1903.] Conolly v. Hyams. 405
N. Y. Rep.] Opinion of the Court, per Cdllen, J.
Leopold Leo, William JIaupt and Benjamin Yates for
respondent. This action, having been begun within one year
after the previous action terminated, " not upon the merits,"
falls within the purview of section 405 of the Code of Civil
Procedure, and was begun in time. (Titus v. Poole, 145 N.
Y. 414; Hayden v. Pierce, 144 N. Y. 512 ; Hamilton v. R.
Ins. Co., 156 N. Y. 327; Budd v. Walker, 29 Hnn, 344;
N. P. Assn. v. Lloyd, 167 N. Y. 438.)
CtrLLEN, J. The action was brought to foreclose a mechan-
ic's lien on real property situated in the city of New York.
There is but one question presented by this appeal which
survives the unanimous decision by the Appellate Division,
that is, whether the plaintiff's lien had been lost prior to the
commencement of this action. Notice of the lien was duly
filed on the 24th day of January, 1S89. The plaintiff com-
menced an action in the Court of Common Pleas to foreclose
such lien on February 15, 1889. In that action the plaintiff
was defeated for failure to produce a certificate from the
architect of the performance of the work, and judgment was
entered therein dismissing the complaint on the merits on
August 4, 1899. On appeal, the Appellate Division, on March
9, 1900, modified the judgment by striking therefrom the
words "on the merits," and affirmed it as modified. On
March 15, 1900, the plaintiff commenced this action to fore-
close the lien and has recovered judgment therein.
The appellant contends that under the provisions of section
6, chapter 342 of the Laws of 1885, and those of section 16
of the Lier^Law of 1897 (Chap. 418), which are substantially
the same, both plaintiff's lien and his money claim were lost
by the length of time which elapsed between the filing of the
lien and the commencement of the present action. These pro-
visions enact that a lien shall not continue for a longer period
than one year after the notice of the lien has been filed, unless
within that time an action is commenced to foreclose the lien
and a notice of the pendency thereof filed with the county
clerk. The respondent claims that his cause of action is
406 CONOLLY V. HyAMS. [Nov.
Opiuion of the Court, per Culi,en, J. [Vol. 176.
saved by section 405 of the Code of Civil Procedure, which
provides that if an action be commenced within the time
limited therefor, and be terminated in any other manner
than a voluntary discontinuance, a dismissal of the complaint
for neglect to prosecute the action or a final judgment upon the
merits, the plaintiff may commence a new action for the same
cause after the expiration of the time so limited and within
one year after such reversal or determination. If this section
applies then it is conceded that the present action was brought
in time. But the appellant insists that the case is governed
exclusively by the provisions of the Mechanics' Lien Law and
does not fall within the section of the Code cited. In support
of this claim he relies on the decision of this court in Hill v.
Bd. Supervisors Rensselaer Co. (119 N. Y. 344). That was
an action brought under chapter 428 of the Laws of 1855 to
recover compensation for the destruction of plaintiff's property
by a mob or riot. The act provided that " no action shall be
maintained under the provisions of this act unless the 6ame be
brought within three months after the loss or injury." An
action within the time limited was brought in the County
Court, but the claim exceeding in amount the jurisdiction of
that court, the action was dismissed. Subsequently and after
the expiration of three months from the time of the loss
another action was commenced in the Supreme Court. It
was held by this court that the provisions of section 405 of
the Code did not apply and the action could not be brought
after the statutory period. The language of the act of
1855, however, i6 very different from that of the Mechanics'
Lien Law. The first statute provided that no action should
be maintained unless brought within three months. Thus
the very action in which the plaintiff could alone obtain
compensation was forbidden by the express terms of the stat-
ute. The provisions of the Lien Law relating to the case now
l>efore us enact that the lien shall cease unless an action be
brought thereon within one year. But this provision of the
statute has been complied with. Therefore, the application
of the beneficial provisions of section 405 of the Code does
1903.] CONOLLY V. IIVAMS. 407
N. Y. Rep.] Opinion of the Court, per Cullex, J.
not contravene the commands of the statute. The tendency of
the latest decisions of this court lias been to extend to all
claims the benefit of the exceptions given by the Code of
Civil Procedure to the bar of the Statute of Limitation,
except where there is an express statute or contract to the
contrary. So in Ilayden v. Pierce (144 N. Y. 512) it was
held that the provisions of section 401, declaring that when
the cause of action accrues against a person who is without the
state the action may be commenced against him within the
time limited therefor after his return into the state, applied to
the case of a rejected claim against the estate of the deceased
person, and that the claim was not barred by the lapse of six
months prescribed by section 1822. In Thus v. Poole (145
N. Y. 414) it was held that the provisions of section 405 of
the Code which we have discussed applied to rejected claims
against the estate of deceased persons, notwithstanding the
short Statute of Limitations against such claims. In Ham^
ilton v. Royal Insurance Company (156 N. Y. 327) an
insurance policy provided that no action thereon should
be maintained unless commenced within twelve months after
the fire. It was held that the provisions of section 399 of
the Code providing that an attempt to commence an action
in a court of record shall be deemed equivalent to the com-
mencement thereof applied to the contract, and that a delivery
of the summons to the sheriff within the time limited was a
sufficient compliance with the terms of the policy. The prin-
ciple of these decisions controls the disposition of this case,
and in conformity therewith we hold that the present action
was brought in time.
The judgment appealed from should be affirmed, with costs.
Parker, Ch. J., Gray, O'Brien, Haioht, Martin and
Werner, JJ., concur.
Judgment affirmed.
408 Knickerbocker Ice Co. v. 42d. St. It. It. Co. [Nov.,
Statement of case. [Vol. 176.
The Knickerbocker Ice Company, Appellant, v. The Forty-
second Street and Grand Street Ferry Railroad Com-
pany et al., Respondents.
1. New York City — Title to Lands under Water. The title of
the city of New York in the tideway and the submerged lends of the
Hudson river granted under the Dongan and Montgomerie charters and
acts of the legislature (L. 1807, ch. 115; L. 1826, ch. 58; L. 1837, ch. 182)
was not absolute and unqualified, but was and is held subject to the right
of the public to the use of the river as a water highway.
2. Title to Lands in the Public Streets Held in Trust. The title
of the city of New York in and to the lands within its public streets is
held in trust for the public use.
8. Rights of General Public over Places Where Land Highways
and Navigable Waters Meet. The general public has a right of pas-
sage over the places where land highways and navigable waters meet; and
when a wharf or bulkhead is built at the end of a land highway and into
the adjacent water, the highway is by operation of law extended by the
length of the added structure.
4. Power of Legislature to Prescribe that Submerged Land
Should Be Used for Streets. The legislature had the power in grant-
ing additional submerged lands to the city of New York (L. 1837, ch. 182)
to prescribe that such lands should be used for the purpose of an exterior
street to which other streets then intersecting the river should be extended.
• 5. Conveyance by the City of New York of Pier in Forty-thikp
Street Not a Conveyance in Fee of Land Covered by tub
Pier — Effect of Covenants Contained in Prior Deeds of Adjoin-
ing Land under Water to Same Grantee — Action Predicated
upon Title in Fee Not Maintainable. A conveyance by the city
of New York in 1852 of a pier situated in Forty-third street in the
Hudson river, which street was laid out under the act of 1807 to high-
water mark, and by the act of 1837 was extended to the exterior
line of the city, containing the following description: "Beginning at
the point formed by the intersection of the northerly side of 43rd street
with the easterly line or side of 12th Avenue; running thence southerly
along the easterly side of 12th Avenue to the northerly side of said pier;
thence westerly 211 feet three inches; thence southerly 40 feet five inches;
thence easterly 212 feet two inches, to the easterly side of 12th Avenue,
and thence southerly to a point where the southerly side of 43rd street
intersects the said 12th Avenue. Together with the extent of the present
width of the street with the right of wharfage thereon, and together with
all and singular the tenements, hereditaments," etc., subject, however, to
the right of the city to order the pier extended into the river at the
1903.] KnICKEKBUCKKR IcE Co. V. 42D St. K. R. Co. 409
N. Y. Rep.] Statement of case.
expense of Lindsley, or to extend the pier at the city's expense, or to
grant the right to do so to other parties if Lindsley should fail to make
such extension when directed so to do, " in which case the right to wharf-
age, etc., at the portion of the pier extended shall belong to the parties at
whose expense the extension shall be made,1' conveys, not the absolute
fee to the land covered by the pier, but the incorporeal hereditament
attached to the fee, i. «., the right to maintain a pier and to collect wharfage
at the foot of Forty^third street in the Hudson river, whenever that point
should be located by lawful authority, since the city held the land under
a public trust and could not convey it in contravention thereof, of which
fact the grantee was chargeable with constructive notice, especially where
by prior deeds to him of adjoining land under water, the city expressly
reserved so much thereof as formed parts of Twelfth and Thirteenth ave-
nues and Forty -third street, and he covenanted therein that at the request
of the city he would construct bulkheads and that the streets should
always remain public streets, and, therefore, he had actual knowledge of the
limitations upon his title. Whatever, therefore, may be the rights acquired
by his successors in title, they include no right to maintain an action
which can only be predicated upon a title in fee.
Knickerbocker Ic* Go. v. Forty-second St. & G. S. F. R. R. Co., 85 App.
Div. 580. affirmed.
(Argued October 20, 1903; decided November 10, 1903.
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered July
22, 1903, affirming a judgment in favor of defendants entered
upon a dismissal of the complaint by the court on trial at
Special Term.
The nature of the action and the facts, so far as material,
are stated in the opinion.
Albert Stickney and M. Edward Kelley for appellant.
Assuming the validity of the deed of 1852, according to its
terms, the right of the plaintiff to equitable relief, based on
the inadequacy of any remedy at law, cannot be seriously
questioned, unless the rights of the plaintiff under the deed
of 1852 be restricted by the covenants contained in the prior
deeds of 1850. (Munn v. People, 94 U. S. 113 ; People v.
N. Y. C. Ji. i?. Co., 28 Hun, 543 ; Gardner v. Vil. of Few-
burg, 2 Johns. Ch. 162 ; Sage v. City of Brooklyn, 89 K Y.
189 ; Langdon v. Mayor, etc., 93 N. Y. 129 ; William* v.
410 Knickerbocker Ice Co. r. 4^i> St. K. It. Co. [Nov.,
Points of counsel. [Vol. 176.
Mayor, etc., 105 X. Y. 419; Maxmilian v. Mayor, etc., 62
X. Y. 160 ; Ham v. Mayor, etc., 70 X. Y. 459 ; Smith v.
6% of Rochester, 76 X. Y. 506; ^ //**. Cb. v. F*7. <>/
Keeseville, 148 X. Y. 46.) The city, under its different grants
from the state, acquired in the first instance the ownership of
the laud under water in front of high-water mark, with the
power to convey its property rights in that land under water,
and any superstructure thereon, to private individuals, until
the change in the policy as to the city water front, which was
created by the act of 1871 establishing the dock department.
{Langdon v. Mayor, etc., 93 X. Y. 129 ; Kingsland v. Mayor,
etc., 110 X. Y. 569 ; Williams v. Mayor, etc., 105 X. Y. 419.)
The power of the city to convey the "pier" by the deed of
1852 is free from doubt, and cannot be questioned under a
contention that the "pier," either as dry land or as land
under water, was public property, or property affected by a
right of use in "the public." {City of Cohoes v. D. c& II. C.
Co., 134 X. Y. 397; Pearsall v. Post, 20 Wend. Ill ; Post
v. Pearsall, 22 Wend. 425 ; Wetmore v. A. L. Co., 37 Barb.
70 ; Wetmore v. B. G. L. Co., 42 X. Y. 384 ; Langdon v.
Mayor, etc., 93 X. Y. 129 ; Williams v. Mayor, etc., 105 X.
Y. 419 ; Kingsland v. Mayor, etc., 110 X. Y. 569 ; Mark v.
Til. of West Troy, 151 X. Y. 453 ; People v. Laimbeer, 5
Den. 9; People v. N. Y. C. A IL R. R. R. Co., 28 Hun,
543.) The legal character of the " pier" in question, as land
under water with a superstructure resting thereon, and not a
public "street," is beyond question. {Matter of M. P.
Ground, 60 X. Y. 319; Matter of Rhinelander, 68 X. Y.
105 ; Wagner v. Perry, 47 Hun, 516.) The contention of
the defendants as to a want of power in the city to convey
the " pier " in question to a private individual wholly ignores
the well-recognized legal distinction between the private
ownership of property and its public use. (Munn v. Illi-
nois, 94 IT. S. 113; People v. JVr. Y. C. R. R. Co., 28
Hun, 543 ; Langdon v. Maym\ etc., 93 X. Y. 129 ; Mayor,
etc., v. Hart, 95 X. Y. 443 ; Williams v. Mayor, etc., 105
X. Y. 419; Kingsland v. Mayor, etc., 110 X. Y. 569.)
1903.] Knickerbocker Ice Co. v. 42d St. R. R. Co. 41 1
N. Y. Rep.] Points of counsel.
The performance by Lindsley's grantees of the covenants
contained in the earlier deeds of 1850, providing for the con-
struction of streets, bulkheads, piers and wharves, has now
been uuvde impossible by the acts of 1871, nor does the reso-
lution of the dock department, which is set up as a justifica-
tion of the intended destruction of plaintiff's pier, call for
such construction as was contemplated by those covenants,
and agreed to be performed by the grantees. (Palmer v.
Gould, 144 N. Y. 671 ; Benedict v. Lynch, 1 Johns. Ch. 370 ;
Phillips v. Berger, 8 Barb. 527.) Even if, however, the
performance of the covenants in the deeds of 1850 were still
possible, or had been really required by any action of the
dock department, the obligation of the covenants contained
in the deeds of 1850 was, as to Forty-third street, essen-
tially modified, if not wholly abrogated, by the subsequent
conveyance of the " pier " itself by the deed of November
11, 1852. (Langdon v. Mayor, etc., 93 N. Y. 129.)
James A. Deering and Henry A. Robinson for Forty-
second Street and Grand Street Ferry Railroad Company,
respondent. Assuming that the plaintiff has a good title to
the pier and the ground upon which it stood when this action
was begun, nevertheless its right to use the same was subject
to the conditions and covenants contained in the grant of
July 1, 1850, to Lindsley, the plaintiff's predecessor in title,
and the statutes then in force and subsequently made under
which the city could lawfully require the railroad company
to make such water-front improvements as the city might
thereafter deem proper. Such improvements cannot be
enjoined. (Cox v. State, 144 N. Y. 405 ; People v. Vander-
bilt, 26 N. Y. 287 ; Witney v. Mayor, etc., 6 Abb. [N. C]
329 ; I. R. R. Co. v. Illinois, 146 IT. S. 453 ; Slingerland
v. I. C. Co., 169 K Y. 60.) The plaintiff has no title to the
pier in question or to the ground upon which it stood. It
has nothing upon which to base a claim to equitable relief for
any contemplated interference with property rights. (Brum
y. M. R. Co., 39 N. Y. S. R. 36 ; Dean v. M. El. R. Co.,
412 Knickerbocker Ice Co. v. 42d St. R. R. Co. [Nov.,
Opinion of the Court, per Werner, J. [Vol. 176.
119 N. Y. 540 ; Hughes v. M. R. Co., 130 N. Y. 14 ; 77. Ii.
Ii. Co. v. Loeb, 7 Robt. 418 ; & W. Co. v. City of Syracuse,
116 X. Y. 167 ; Tiedeman on Mun. Corp. § 169 ; Donovan
v. City of New York, 33 N. Y. 291 ; Lyddy v. Long Island
City, 104 N. Y. 218 ; McDonald v. Mayor, etc., 68 N. Y.
23 ; Parr v. Vil. of Greenish, 72 X. Y. 463 ; Martin v.
Mayor, etc., 1 Hill, 545.)
George L. Hives, Corporation Counsel (Theodore Connoly
and E. J. Freedrnan of counsel), for City of New York et al.,
respondents. The plaintiff has failed to prove any cause of
action entitling it to equitable relief, and under the pleadings
and evidence no other relief can be granted. (K. I. Co. v. F.
S. S. Ii. Ii. Co., 16 J. & S. 499 ; Munson v. Jieid, 46 Hun,
403 ; Wells v. Garbutt, 132 N. Y. 436.) Plaintiff had no title
to the pier, to the land under it nor to the adjacent lands, and
nothing less would support the action. {People v. Laimbeer,
5 Den. 9 ; Matter of City of Brooklyn, 73 N. Y. 179 ; 2
Dillon on Mun. Corp. [4th ed.] § 650 ; Brooklyn v. Arm-
strong, 45 N. Y. 234 ; S. V. 0. Asylum v. City of Troy, 76
N. Y. 108; Kane v. iT. Y. El. Ii. Ii. Co., 125 N. Y 183;
People v. Mallory, 46 How. Pr. 256 ; Taylor v. A. M. In*.
Co., 37 N. Y. 275 ; Marshall v. Guion, 11 N. Y. 461 ; Comrs.
of Pilots v. Clark, 33 N. Y. 251 ; liadivay v. Briggs, 37 N.
Y. 256.) The city did not convey, nor attempt to convey,
any land by the execution of the deed to the pier. ( Wheebr
v. Spinola, 54 N. Y. 388.)
Werner, J. Under claim of title to a pier and the lands
occupied by it, at Forty-third street and the Hudson river, in
the city of New York, the plaintiff herein commenced this
action and obtained an injunction pendente lite, restraining
the defendants from effecting certain harbor improvements
projected, under legislative authority, by the city of New
York. The decision of the trial court was in the short form
and was adverse to the plaintiff. The judgment entered upon
that decision has been unanimously affirmed by the Appellate
1903.] Knickerbocker Ice Co. v. 42d St. It. R. Co. 413
N. Y. Rep.] Opinion of the Court, per Werner, J.
Division. Many interesting questions have been most ably
presented on both sides, but in its last analysis the case turns
upon the nature and extent of the grant to the plaintiff. If,
as the plaintiff contends, that grant purported to vest in it an
absolute fee to the locus in quo, then numerous other ques-
tions affecting the validity of the grant remain to be consid-
ered. If, on the other hand, the plaintiff never had a title in
fee to the lands in controversy, then this action must fail, for
the plaintiff's claim to the relief asked for in the complaint
can only be predicated upon the title which he asserts. A
short recital of a few salient facts will suffice to show why we
think the judgment of the courts below must be affirmed.
Under the Dongan and Montgomerie charters the city of
New York acquired title to the tideway surrounding the island
of Manhattan. In 1807 the state granted to the city a strip of
land underwater along the westerly side of the island, which
extended from low-water mark westerly into the Hudson
river, a distance of 400 feet. On the Hudson riverside of the
island the city was, therefore, the owner of the lands between
high-water mark and low-water mark and for a distance into
the river of 400 feet beyond low-water mark.
This was the situation when, under the act of 1807, the
street commissioners' map of 1811 was filed laying out Forty-
second and Forty-third streets from high-water mark on the
East river to high-watermark on the Hudson (or North) river.
The next chapter in historical progression is the act of the
legislature of 1837 (Ch. 182) entitled " An act to establish a
permanent exterior street or avenue in the City of New York
along the easterly shore of the North or Hudson's River, and
for other purposes." Section 1 of that act approved of the
map made by George B. Smith in 1837 pursuant to a resolu-
tion of the board of aldermen, upon which Thirteenth avenue
was laid out as the permanent exterior line along the easterly
shore of the Hudson river between Hammond (W. 11th)
street and 135th street. Section 2 provided that the streets
southerly of and including 135th street, as laid out under the
act of 1807, "shall be continued and extended westerly along
414 Knickerbocker Ice Co. v. 42d St. R. K. Co. [Nov.,
Opinion of the Court, per Werner, J. [Vol. 176.
the present lines thereof from their present terminations on
the said map or plan respectively to the said Thirteenth Ave-
nue." Section 3 granted to the city the lands nnder the
waters of the Hudson river between Hammond (11th) street
on the south and 135th street on the north, and between the
westerly boundary of the 400 foot strip, above referred to, on
the east, and the westerly boundary of Thirteenth avenue on
the west. Section 4 gave to the owners of adjoining uplands
certain pre-emptive rights in the lands under water.
In 1837 the city was, therefore, the owner of the lands
extending from high-water mark to Thirteenth avenue, sub-
ject to the legislative command that the streets enumerated, in
the statute, among which were Forty-second and Forty-third
streets, " shall be continued and extended westerly along the
present lines thereof from their present terminations * * *
to the said Thirteenth Avenue."
Pursuant to the plans outlined in the act of 1837 the city,
in 1837 and 1838, acquired the uplands necessary to open
Forty-third street from high water at the East river to high
water at the Hudson river.
In 1844 an ordinance was passed providing for the creation
of a sinking fund for the redemption of the city debt and
regulating the powers of the commissioners of the sinking
fund. It authorized the sale, by the commissioners, of such
corporate lands only as were not reserved for the public use
(sec. 17) and directed that all grants thereof should contain
the usual covenants in relation to streets and avenues passing
through them ; and for the building and maintenance of bulk-
heads and wharves and the collection of wharfage, etc. This
ordinance was confirmed by the legislature in the enactment
of chapter 225, Laws of 1845.
In 1848, 1849 and 1850 Caleb F. Lindsley became the
owner of the uplands east of high- water mark on the Hudson
river between Forty-second and Forty-third streets.
The foregoing chronological recital of events now brings us
to the deeds upon the construction and effect of which the
rights of the parties directly depend.
1903.] Knickerbocker Ice Co. v. 42d St. R. K. Co. 415
N. Y. Rep.] Opinion of the Court, per Werner, J.
In 1850 the city of New York, by two separate grants, con-
veyed to Lindsley the lands under water between Forty-second
and Forty-third streets, subject to the covenants expressed in
the deeds. The city reserved out of the premises granted so
much thereof as formed parts of Twelfth and Thirteenth ave-
nues and Forty-third street. The lines and boundaries of the
lands granted were referred to as particularly described and
designated on a map which was attached to, and made a part
of, the deeds. This map shows the avenues and streets men-
tioned in the deeds as laid out under the plan of 1807 as
amended in 1837. The grantee covenanted, upon request or
direction of the grantor, to construct bulkheads and streets, to
make pavements and sidewalks, and to keep them in repair
for the use of the general public. The grantee further cove-
nanted that said streets and avenues should forever remain
public streets for the use of the public, the same as other
streets in the city.
The grants of 1850 to Lindsley were followed by another
grant to him in November, 1852, of the pier in controversy.
This last grant was made pursuant to a resolution of the
board of aldermen and the commissioners of the sinking fund,
to the effect that the pier at the foot of Forty-third street,
with the extent of the present width of the street, be sold to
Lindsley for the consideration of $8,000.00, and the descrip-
tion in the deed was as follows : " Beginning at the point
formed by the intersection of the northerly side of 43rd
street with the easterly line or side of 12th Avenue ; running
thence southerly along the easterly side of 12th Avenue to
the northerly side of said pier ; thence westerly 211 feet
three inches ; thence southerly 40 feet live inches ; thence
easterly 212 feet two inches, to the easterly side of the 12th
Avenue, and thence southerly to a point where the southerly
side of 43rd street intersects the said 12th Avenue. Together
with the extent of the present width of the street with the
right of wharfage thereon, and together with all and singular
the tenements, hereditaments," etc., subject, however, to the
right of the city to order the pier extended into the river at
416 Knickerbocker Ice Co. v. 42d St. R. R. Co. [Nov.,
Opinion of the Court, per Werner, J. [Vol. 176.
the expense of Lindsley, or to extend the pier at the city's
expense, or to grant the right to do so to other parties if
Lindsley shonld fail to make such extension when directed so
so do, " in which case the right to wharfage, etc., at the por-
tion of the pier extended shall belong to the parties at whose
expense the extension shall be made."
The grants above referred to were followed by the creation
of the department of docks in 1870 with authority to adopt a
system of water-front improvements, and in 1871 that depart-
ment adopted a plan which was thereafter approved and
adopted by the commissioners of the sinking fund. Under
this plan a new bulkhead or exterior line was established con-
siderably east of Thirteenth avenue and 150 feet west of the
westerly side of Twelfth avenue.
In 1873 the city granted to the plaintiff, which by various
mesne conveyances had acquired Lindsley's title to the pier
in 43d street, a permit to extend and widen the pier. Under
this permit the plaintiff agreed to pay an annual rental of
$100.00 for the land occupied by the extension, and to waive
all claims for damages in case the city should take the
land covered by the extension for permanent water-front
improvement.
Pursuant to the plan adopted by the city authorities the
pier was, in 1873, widened and extended outward about 300
feet beyond the westerly end of the old pier.
In December, 1890, the department of docks adopted a
resolution directing the defendant, the Forty-second Street
Railroad Co., which by various mesne conveyances had
acquired title to the land below high-water mark next south of
the pier, to construct a bulkhead or sea wall between the mid-
dle line of 43rd street and the middle line of 42nd street on the
North (or Hudson) river, and to do the necessary filling in,
according to the plan adopted by the city authorities in 1871.
Thereupon, in 1891, this action was commenced. This
event was followed by a number of others of historical inter-
est, but of no important bearing upon the disposition which
we think must be made of this case.
1903.1 Knickerbocker Ice Co. v. 42n St. K. R. Co. 417
N. Y. Rep. J Opinion of the Court, per Werner, J.
We proceed at once, therefore, to consider the effect of the
conveyance under which the plaintiff claims title, and this
necessitates an occasional reference to some of the proceedings
above enumerated.
There are several fundamental facts which must be kept in
view in the effort to adjust the rights of the parties to this
litigation. First. The title of the city of New York in the
tideway and the submerged lands of the Hudson river granted
under the Dongan and Montgomerie charters and the acts of
the legislatures of 1807, 1826 and 1837, was not absolute and
unqualified, but was and is held subject to the right of the pub-
lic to the use of the river as a water highway. {Sage v. Mayor,
etc., of N. Y., 154 N. Y. 70; Matter of City of New York,
168 N. Y. 139.) Second. The title of the city of New York
in and to the lands within its public streets is held in trust for
the public use. {Story v. X. Y. El. R. R. Co., 90 N. Y.
122 ; Kane v. N. Y. Eh R. R. Co., 125 N. Y. 165.) Third.
The general public has a right of passage over the places
where land highways and navigable waters meet ; and when
a wharf or bulkhead is built at the end of a land highway
and into the adjacent waters, the highway is by operation of
law extended by the length of the added structure. {People
v. Lambier, 5 Denio, 9 ; Matter of City of Brooklyn, 73 N.
Y. 179.) Fourth. It was competent for the legislature in
granting additional submerged lands to the city of New York
in 1837, to prescribe that such lands should be used for the
purposes of an exterior street, to which other streets then
intersecting the river should be extended.
In the light of these observations let us consider again
the situation as it was in 1850 and 1852 when the grants to
Lindsley were made. By the act of 1837 the legislature had
directed that Forty-third street " shall be " extended to Thir-
teenth avenue. The title to the lands within the lines of
Forty-third street and below high-water mark, being then in
the city of New York, this legislative command was in effect
an immediate application of such lands to the purpose for
which the grant of 1837 was made. The almost immediate
27
418 Knickerbocker Ice Co. v. 42d St. R. R. Co. [Nov.,
Opinion of the Court, per Werner, J. [Vol. 176.
institution of condemnation proceedings to acquire the uplands
necessary to actually open Forty-third street to high-water
mark was a distinct recognition of the city's duty in the
premises, and when those proceedings were completed in 1838
they carried with them the public right of access to the river,
either at high-water mark or at the end of the pier if it was
then in existence. If the pier was not then in existence, the
same result was, of course, accomplished when it was built.
(People v. Lambier and Matter of City of Brooklyn, supra.)
The deeds of 1850 were taken by Lindsley under covenants
which expressly provided for the continuance of the streets
and avenues laid out on the Smith map of 1837, and under
constructive knowledge of the limitations which the ordinance
of 1844, as confirmed by the act of 1845, had placed upon the
powers and duties of the commissioners of the sinking fund.
What, then, was the effect of the deed of 1852? The
grantee therein named was the same as in the deeds of 1850.
He had actual knowledge of the covenants expressed in those
deeds, and was chargeable with constructive notice of the
public character of the property described in the deed of 1852,
the public trusts upon which it was held by the city, and the
limitations upon the powers of municipal officers in respect of
such property. (Donovan v. Max/or, etc., of N.y Y., 33 N. Y.
291 ; Lyddy v. Long Island City, 104 N. Y. 219.) In addition
to this, the description in the grant did not inclose the interior
or shore end of the pier. The city expressly reserved the
right to order the pier extended by the grantee, or, in case of
his failure to comply with such order, to make the extension
itself or through others to whom it might grant the right,
and, in the latter event, the rights of wharfage, etc., were to
belong to those who made the extension. These things are
not only inconsistent with the idea that the grant of 1852
conveyed an absolute fee, but they speak with most persuasive
force of the real purpose and effect of the grant, which was
to convey to the grantee the right to maintain a pier, and to
collect wharfage, etc., at the foot of Forty-third street in the
Hudson river, wherever that point should be located by law-
1903.] Knickerbocker Ice Co. v. 42d St. R. 11. Co. 419
N. Y. Rep.] Opinion of the Court, per Werner, J.
fnl authority. It was the incorporeal hereditament attached to
the fee, and not the fee itself, that was conveyed. Under this
construction of the grant the rights of all concerned are recog-
nized and preserved. The city holds the title which it never
had the right to alienate. The plaintiff, as the grantee's suc-
cessor in title, has the right to follow the lawful extension of
Forty-third street for the purpose of maintaining a pier and
collecting its revenues. The Forty-second Street R. R. Co.,
as successor to the title, rights and obligations of the grantee
under the deeds of 1850, can perform the covenants of these
deeds and reap the benefits which may accrue therefrom.
This construction of the grant of 1852 is, morever, in har-
mony with our decision in the case of Langdon v. Mayor, etc.,
of N. Y. (93 N. Y. 129), to the effect that a grant of the right
of wharfage is property, the possession of which can only be
resumed by the state or municipality, by due process of law and
upon proper compensation. Thus, it will be seen, that whatever
the rights of the plaintiff may be in matters of substance or
procedure, it cannot maintain this action, for it is predicated
upon an alleged title in fee that does not exist, and ignores
the covenants which effectually bar the relief herein prayed
for. Having arrived at this conclusion it is neither necessary
nor pertinent to suggest what other proceedings may, or should
be, instituted by the plaintiff, for such other proceedings may
be affected or controlled by some of the events which have
transpired since 1S73, but which have no legitimate bearing
upon the case now before us.
The judgment of the court below should Jbe affirmed, with
costs.
Parker, Ch. J., Gray, Haight, Martin, Vann and
Ccllen, JJ., concur.
Judgment affirmed.
420 Lehigh Valley Ry. Co. v. Adam. [Nov.,
Statement of case. [Vol. 176.
Lehigh Valley Railway Company et al., Appellants, v.
Robert B. Adam et al., Constituting the Grade Crossing
Commissioners of the City of Buffalo, Respondents.
Buffalo (City of) — Power of Commissioners under Grade Cross-
ing Acts to Change General Plan. Under the Buffalo Grade Crossing
Acts (L. 1888, ch. 845; L. 1890, ch. 255; L. 1892, ch. 858) providing that:
1. The general plan to be adopted may be amended only in matters of
detail. 2. It shall not be extended beyond the general plan heretofore
adopted under which contracts have been entered into. 8. Contracts
heretofore or hereafter made with railroad companies may be changed by
agreement between the contracting parties, but not otherwise — where the
commissioners in March, 1898, adopted a general plan which provided
for no change in the grade of a railroad running through the city as then
constructed and operated, they cannot compel the railroad company to
change the elevation of its tracks and reconstruct its terminal structures,
sidings and switches to comply with a plan proposed and adopted in
1899, which is an extension of the general plan of 1898, and not a modifi-
cation, in some details, of that plan.
Lehigh Valley By. Co. v. Adam, 70 App. Div. 427, reversed.
(Argued October 26, 1908: decided November 10, 1908.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
April 18, 1902, upon an order reversing a judgment in favor
of plaintiffs entered upon a decision of the court on trial at
Special Term and granting a new trial.
This action was brought to obtain an injunction to restrain
the defendants from proceeding to compel the plaintiff rail-
way company to elevate a part of its road in the city of
Buffalo and to reconstruct its freight and passenger terminals.
The facts, so far as material, are stated in the opinion.
Martin Caret/ and James McC. Mitchell for appellants.
The respondent grade crossing commissioners have no author-
ity, under the statute, to compel the elevation of three-quarters
of a mile of the main line of the appellants' railroad and the
reconstruction of its freight and passenger terminals as pro-
1903.] Lehigh Valley Ry. Co. v. Adam. 421
N. Y. Rep. J Opinion of the Court, per Werner, J.
posed. (Power v. ViL of Athens, 99 N. Y. 592 ; Matter of
Breslin, 45 Hun, 210; People v. O'Brien, 111 N. Y. 1;
MilJian v. Sharp, 27 N. Y. 611; Davis v. Mayor, eU\, 14
N. Y. 506 ; People v. Sturtevant, 9 N. Y. 263.)
Spender Clinton for respondents. The commissioners are
not restricted by their contract with the railway company,
made in 1888, from amending their plan so as to compel the
company to raise its tracks. (Cleveland v. City of Augusta,
102 Ga. 233 ; N. Y. tfe N. E. P. P. Co. v. Bristol, 151 F. S.
556; W. P. P. Co. v. Defiance, 167 U. S. 88; C, B. eft Q.
P. P. Co. v. Nebraska, 170 IT. S. 57.)
Werner, J. The grade crossing commission of the city
of Buffalo is a body of statutory creation and jurisdiction.
(Ch. 345, L. 1888; Ch. 255, L. 1890; Ch. 353, L. 1892.)
The question before us is whether that body had jurisdiction
in 1899 to impose upon the Lehigh Valley Railway Company
the burden of elevating its tracks in accordance with the plan
then adopted. The answer to that question is to be found in
the statute (Ch. 353, L. 1892), which is the latest legislative
grant of power to the commission, and which provides that
the commissioners " shall adopt a general plan for the relief
of the city from the present and prospective obstructions of
the streets of the city by railroads crossing the same at grade
and may from time to time alter, amend, or modify the same
as to any detail, but said general plan, when adopted, shall not
extend beyond the general plan heretofore adopted by said
commission under which contracts have already been entered
into, nor shall the same be extended ; they may make con-
tracts on behalf of the city with any railroad company or com-
panies to carry out the purpose of this act, and may, by agree-
ment with the contracting company, alter, modify or change
any contract heretofore or hereafter made by them."
This statute contains three emphatic limitations: 1. The
general plan to be adopted may be amended only in matters of
detail. 2. It shall not be extended beyond the general plan
422 Lehigh Vaxley Ry. Co. v. Adam. [Nov.,
Opinion of the Court, per Webneii, J. [Vol. 176.
heretofore adopted under which contracts have been entered
into. 3. Contracts heretofore or hereafter made with railroad
companies may be changed by agreement between the con-
tracting parties, but not otherwise. Under this statutory
authority, thus limited, the commission, in November, 1893,
adopted a general plan which provided for no change in the
grade of the Lehigh Valley Railway Company as then con-
structed and operated, and which left undisturbed the street
crossings at grade over its right of way.
What was the physical situation of the Lehigh Valley Rail-
way Company when the general plan of 1893 was adopted ?
It came into and ran through the city of Buffalo above grade
to a point east of Louisiana street, where it descended to
grade and thus crossed the latter street and Chicago street ;
thence along the bed of Scott street to Michigan street,
crossing the same at grade and then over its own property
to its terminal station at Washington street. This has been
the unchanged physical condition of the right of way of that
railroad in the city of Buffalo from 1882, when it first began
to operate, with the single exception that in 1888, after the
passage of the first Grade Crossing Act, and after the adop-
tion of the first general plan by the grade crossing commis-
sion, the grade at the Michigan street crossing was slightly
changed to conform to the plan for a viaduct over other
railroads. This change was made pursuant to the contract of
November, 1 888, between the commissioners and the railway
company.
What was the change proposed under the plans and pro-
cedure of the commission in 1899 ? It involved the elevation
of the Lehigh tracks over a distance of three-fourths of a mile
upon a structure of stone and iron or steel. In effect, it also
required the reconstruction of its terminal structures, sidings
and switches. The most cursory glance at the proposed plans
discloses the magnitude and importance of the projected
change.
Was this proposed change a mere amendment in some detail
of the general plan of 1893, or was it a substantial extension
1903.] Lehigh Valley Ry. Co. r. Adam. 423
N. Y. Rep.] Opinion of the Court, per Werner, J.
of the plan ? The undisturbed findings of fact of the trial
court present a conclusive answer to this question. The trial
court has specifically found that the proposed change is an
extension of the engineers' plan of 1888, of the general plan of
1888 under which the contract of that year between the plain-
tiff and defendant was entered into, and of the general plan
of 1893.
The reversal by the Appellate Division of the judgment
entered upon that finding must be presumed to have been
based upon questions of law (Sec. 1338, Code Civ. Pro.), so
that the fact as found by the trial court must stand for the
purposes of this review. If we go a 6tep further, however,
and concede for the purposes of the argument that what is
called a finding of fact is really a conclusion of law, we can-
not escape the conviction that it was sound and just as applied
to the conceded facts of the case. We think that the learned
trial court wa6 right in holding that the proposed plan for the
elevation of the Lehigh Valley Railway Company's tracks in
1899 was an extension of the general plan of 1893, and that
the learned Appellate Division erred in deciding that it was
a mere modification, in some detail, of that previous plan.
This view necessarily leads to the conclusion that the com-
missioners were without power to impose upon the Lehigh
Valley Railway Company the burden of changing its railroad
to conform to the proposed plan of 1899.
Since the question before us is not whether such power
could have been, or can be, granted by the legislature, but
simply whether it was granted under the acts above referred
to, we may here properly end the discussion of the subject by
stating that the judgment of the Appellate Division must be
reversed, and that of the trial court affirmed, with costs to the
plaintiff in all courts.
Parker, Ch. J., Gray, O'Brien, Haight, Martin and
Cullen, JJ., concur.
Judgment reversed, etc.
424 Wallace v. McEchbon. [Nov.,
Statement of case. [Vol. 176.
Fanny F. Wallace et ah, as Executors of Edwin R. Wal-
lace, Deceased, Appellants, v. William McEchbon et ah,
Respondents, Impleaded with Others.
1. Partition — Parties. One claiming title in hostility to the plain-
tiff in an action of partition may properly be made a party defendant.
2. Tax — When State Tax Deed Void fob Failure of Comptrol-
ler to Give Statement of Unpaid Taxes on Land When Requested
bt Owner. Where the default of a taxpayer was caused by the failure
of the state comptroller or his clerks to render a proper statement of the
unpaid taxes, a subsequent deed executed by the comptroller in 1886 and
recorded in 1887 in pursuance of a tax sale made in 1871 for the unpaid
taxes omitted from the statement cannot divest the owner of his title.
3. Section 132 of the Tax Law Relating to Effect of Fobmeb
Deeds Not Applicable. Section 132 of the Tax Law (L. 1896, ch. 908),
providing that a comptroller's deed which has been recorded for two
years shall be conclusive evidence that the sale and proceedings prior
thereto were regular and that conveyances shall be subject to cancellation,
(1) by reason of the payment of such taxes; (2) by reason of the levying
of such taxes by a town or ward having no legal right to assess the land
on which they are laid; (8) by reason of any defect affecting the juris-
diction upon constitutional grounds, if application is made to the comp-
troller or an action is brought, in the case of all sales made prior to 1895,
within one year from the passage of the act, is not applicable to such a
case whether treated as a statute of limitation or as a curative act, and,
therefore, the fact that the owner failed to apply for a cancellation or to
bring an action within the prescribed time, does not preclude him from
thereafter asserting his title in an action for a partition of the property.
Wallace v. International Paper Co.t 84 App. Div. 88, reversed.
(Argued October 28, 1908; decided November 10, 1908.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the third judicial department, entered May
12, 1903, affirming a judgment in favor of defendants entered
upon a dismissal of the complaint by the court on trial at
Special Term.
The nature of the action and the facts, so far as material,
are stated in the opinion.
Homer Weston for appellants. The comptroller's certifi-
cate of the amount of taxes due in the statement to Munn
1903.] Wallace v. McEchron. 425
N. Y. Rep.] Opinion of the Court, per Cullen, J.
and the proper receipt therefor in fall, given on due request
and in obedience to a statute requiring it, created an estoppel
against the comptroller and those in privity with him. ( Breisck
v. Coxe, 81 Penn. St. 336 ; Randall v. Dailey, 66 Wis. 285 ;
People ex ret. v. Registrar, etc., 114 N. Y. 19 ; Blackwell on
Tax Titles [5th ecL], § 830; M. L. Ins. Co. v. Corey, 135 K
Y. 326 ; People v. Stephens, 71 N. Y. 527 ; Thompson v.
Simpson, 128 N. Y. 270; M. & T. Bank v. Hazard, 30 K
Y. 226 ; Trustees v. Smith, 118 N. Y. 634 ; Weyh v. B<yylan,
85 N. Y. 394 ; Blair v. Wait, 69 N. Y. 113.) Plaintiffs have
not lost their rights because of failure to comply with the pro-
visions of section 132 of the Tax Law. (Higgins v. Crouse,
147 K Y. 411 ; Parmenter v. State, 135 N. Y. 154 ; Zink
v. McManus, 121 N. Y. 259 ; Hayner v. HaU, 159 K Y.
553 ; Gilbert v. Ackerman, 159 N. Y. 124 ; Colon v. Lisk,
153 N. Y. 18S ; Andrtts v. Wheeler, 29 Misc. Rep. 412.)
George N. Ostrander for respondents. Assuming that the
comptroller did render appellants' grantor a defective tax bill,
the state was not thus estopped from collecting the unpaid
tax. (People ex rel. v. Superviso?1*, 29 Hun, 185 ; 93 N. Y.
397 ; People ex rel. v. Barnes, 114 N. Y. 317 ; Flynn v.
Ilurd, 118 K Y. 27 ; Parmenter v. State, 135 N. Y. 155 ;
Peck v. State, 137 N. Y. 372 ; State v. Brewer, 64 Ala. 287 ;
Pulaski v. State, 42 Ark. 118; Atty.-Gen. v. Mann, 55
Mich. 445.) The Statutes of Limitation operate to secure
defendant's tax title, and are a bar to this action. (People v.
Turner, 117 K Y. 227 ; Ostrander v. Parting, 127 N. Y.
70 ; Ensign v. Parse, 107 N. Y. 329 ; People v. Turner, 145
N. Y. 457 ; Marsh v. N. P. Assn., 25 App. Div. 34 ; Peo-
ple v. Turner, 18 U. S. Sup. Ct. 38; S. L. cfe T. Co. v. Hob-
erts, 83 Fed. Rep. 436 ; Morgan v. Turner, 35 Misc. Rep.
399 ; Cooley on Const. Lim. [6th ed.] 450 ; Parmenter v.
State, 135 N. Y. 154 ; People ex rel. v. Boberts, 162 N. Y.
371.)
Cullbn, J. The action was brought for the partition of a
tract of eleven hundred acres of wild lands in the county of
421> Wallace v. McEchron. [Nov.,
Opinion of the Court, per Cullen, J. | Vol. 176.
Hamilton. The complaint alleged that the plaintiffs were
seized of two undivided thirds of the lands in question, the
defendant The International Paper Company of the other
third, and that the defendant William McEchron, the respond-
ent on this appeal, claimed some interest therein. On the
trial the plaintiffs deduced their title through several mesne
conveyances and wills from a conveyance by the state in 1845.
The respondent traced his title from a deed from Alfred C.
Chapin, comptroller, to Warren Curtis and Benjamin F.
Baker, December 29th, 1886, and recorded in the office of the
clerk of Hamilton county on February 7th, 1887, executed in
pursuance of a sale of the lands made in 1871 for the non-
payment of a tax for $1.17 imposed in the year 1862 for the
construction of a highway through Herkimer, Hamilton and
Lewis counties directed to be laid out by chapter 347 of the
Laws of 1853, as amended by chapter 451 of the Laws of
1859. The counsel for the appellants claims to have estab-
lished on the trial that such tax was actually paid by the plain-
tiffs' predecessor in title. But the trial court found to the
contrary, and that finding having been unanimously affirmed
by the Appellate Division, is conclusive upon us. The trial
court, however, further found that in November, 1886, one
Munn, then the mortgagee or owner, applied to the comp-
troller of the state for a statement of the unpaid taxes upon
the property and that the comptroller rendered one to her
which " purported to contain a statement of all taxes due on
said property, but in fact did not contain a statement of said
road tax." Munn paid all the taxes so returned to her by the
comptroller and obtained from him a receipt in full. With-
out narrating the other facts in the case it is sufficient now to
say that the trial court held that the record of the comptroller's
deed to Curtis and Baker and the failure of the plaintiffs to
bring any action or proceeding to cancel or annul the same
within one year operated under the provisions of section 132
of the Tax Law (Chap. 908, Laws of 1896) to bar and divest
all the plaintiffs' rights.
The practice of the appellants in making the respondent a
1903.1 Wallace v. McEchrox. 427
N. Y. Rep.] Opinion of the Court, per Cullen, J.
party to the action, although lie claimed in hostility to them,
is justified by the decision of this court in Satterlee v. Kobbe
(173 N. Y. 91). While under the findings of the trial court
we must assume that the road tax was not paid, it appears
that the failure to pay it was occasioned by the neglect of the
comptroller or his clerks to return its amount to the owner
on her request. It was made the duty of the comptroller
under section 27 (Art. 2, chap. 13, title 3) of the Revised
Statutes to give any person requesting it a statement of the
tax, interest and charges due on any piece of land. It has
been decided by this court that where the default of the tax-
payer is caused by the failure of the public officer or his clerks
to render a proper statement of the unpaid taxes, a sale made
for unpaid taxes omitted from the statement cannot divest the
owner of his title. ( Van Benthuysen v. Sawyer, 36 N. Y.
150; People ex rel. Cooper v. Registrar of Arrears, 114 N.
Y. 19.) The sale of the lands to Curtis and Baker was,
therefore, void as against the plaintiffs, and we are thus
brought to a consideration of the effect of the record of the
comptroller's deed under section 132 of the Tax Law.
The learned courts below based their determination of the case
on the decisions of this court in People v. Turner (145 N. Y.
457) and Meigs v. Roberts (162 N. Y. 371). Those cases
involved the construction and effect not of the statute now
before us but of earlier enactments of a somewhat similar
character. Such statutes have been viewed by this court both
as curative acts and as statutes of limitations. It is to be
observed, however, that none of them has been enacted in
the ordinary form either of a curative act or of a statute of
limitations. In terms they provide that after a certain lapse
of time and in certain contingencies a comptroller's deed shall
be conclusive evidence of certain facts. It, therefore, becomes
necessary when any case involving the construction and effect
of one of these statutes is presented to closely scrutinize and
carefully analyze the statute to see whether as to such case
the statute applies, and if applicable, whether its operation
is that of a curative act or of a statute of limitations. In
428 Wallace v. McEchbon. [Nov.,
Opinion of the Court, per Cullen. J. [Vol. 176.
the Turner* and RoherU cases the operation of the statute
there under review was prospective, and it was held that the
acts were statutes of limitations. In the present case the con-
trary is the fact ; the comptroller's deed and its record were
prior to the enactment of the Tax Law. It is elemental con-
stitutional law that while the legislature may shorten the time
allowed for the prosecution of claims or assertion of rights,
even as to claims and rights existing at the time, it must leave
a reasonable time after the enactment of such a law in which
such rights and claims may be asserted and enforced. A con-
trary rule would enable the legislature to arbitrarily transfer
the property of one person to another. The first part of sec-
tion 132 of the Tax Law provides that every conveyance
theretofore executed by the comptroller, which has been
recorded for two years in the office of the proper county clerk,
shall be conclusive evidence that the sale and proceedings
prior thereto were regular.
Had the section stopped at this point no one would contend
that the law could be upheld as a statute of limitations. It
could only operate as a curative act subject to all the limita-
tions on the power of the legislature to pass such an act that
are pointed out in the case of Meigs v. Roberts. The section
then proceeds : "But all such conveyances and certificates,
and the taxes and tax sales on which they are based, shall be
subject to cancellation, by reason of the payment of such
taxes, or by reason of the levying of such taxes by a town or
ward having no legal right to assess the land on which they
are laid, or by reason of any defect in the proceedings affect-
ing the jurisdiction upon constitutional grounds, on direct
application to the comptroller, or in an action brought before
a competent court therefor; provided, however, that such
application shall be made, or such action brought, in the case
of all sales held prior to the year eighteen hundred and ninety-
five, within one year from the passage of this act." The
counsel for the respondent contends that by these later pro-
visions the appellants were given one year in which to bring
the proper action for the enforcement of their rights and the
1903.] Wallace v. McEchron. 429
N. Y. Rep.] Opinion of the Court, per Cullen, J.
assertion of their title. If this were the fact then it might
well be argued that the act operated as a statute of limita-
tions and the question would be presented whether the time
allowed was reasonable and whether it could apply in favor
of a claimant who had not entered into possession. But
the difficulty with this statute lies just here. It does not
give an owner for the term of one year after the pas-
sage of the act an unqualified right to institute an action
or proceeding to cancel the hostile tax sale or deed, but only
to assail it on three grounds specified : 1. That the taxes
have been paid ; 2. That the town or ward had no legal right
to assess the land ; 3. A defect affecting the proceeding on
constitutional grounds. Now, it happens that the thing which
we hold rendered the tax sale void in the present case falls in
neither of the three classes. Therefore, it follows that so far
from having a year the plaintiffs never had an instant after
the statute went into effect in which to assert or enforce their
rights. It would require neither great ingenuity nor much
reflection to suggest many other grounds that would render a
tax sale void, yet would not be included in the cases specified
in the statute. Whether with the right to bring an action
being thus restricted and qualified, section 132 of the Tax Law
can be held to operate in any respect as a statute of limitations
in the case of past conveyances it is unnecessary to determine ;
it is obvious that it can have no such effect as against the right
or claim of the plaintiffs which was excluded from enforcement
by such restrictions.
The law if treated as a curative act is no more efficacious.
While the legislature may by subsequent enactment cure
defects or irregularities in proceedings to impose a tax if they
relate to requirements that the legislature might in the first
instance have dispensed with, where the proceedings are so
fatally defective that no title passes, it cannot by a curative
act transfer the title of one person to another. (Cromwell v.
Maclean, 123 N. Y. 474; Joslyn v. Rockwell, 128 N. Y.
334.) As these views dispose of the present appeal and may
dispose of the entire litigation, we deem it unnecessary to dis-
430 Knowles v. City of New York. [Nov.,
Statement of case. [Vol. 176.
cuss the other serious grounds of attack on the judgments
below.
The judgment appealed from should be reversed and a new
trial granted, costs to abide the event.
Parker, Ch. J., Gray, O'Brien, Martin and Werner,
JJ., concur ; Haight, J., not sitting.
Judgment reversed, etc.
William P. Knowles, Appellant, v. The City of New York
et al., Respondents.
1. Pleading — Insufficiency of General Allegation of Fraud.
General allegations of fraud arc of no value in stating a cause of actiou;
the facts or intent must be stated in such a manner that the court may
see whether they were fraudulent or not.
2. New York City — Power of New East River Bridge Com-
missioners— L. 1895, Ch. 789 — Provisions in Specifications Limiting
Competition Neither Illegal nor Fraudulent. General allegations
in a taxpayer's action to annul a contract made by the commissioners of
the New East River bridge in the city of New York for the construc-
tion of the bridge, that the commissioners fraudulently prescribed iu
their notices and specifications that proposals would be received from
those bidders only who possessed plants requisite to do the work and whose
plants had been in successful operation for at least one year, and that
there would be excluded steel containing more than a specified percentage
of foreign elements •' with the purpose and intent of limiting competition
and confining the same to a small class of bidders." and also charging that
the cost of the work was increased thereby, in the absence of any allega-
tions of fact except the statement that their action was taken with the pur-
pose and intent of limiting the class of bidders, are insufficient to support
the charge of fraud, since under the act directing the construction of the
bridge (L. 1895, ch. 789, § 3) the power of the commissioners, which was
not limited or qualified by subsequent charter provisions, was plenary
and they were not limited to the performance of the work by contract or
by competition, and, therefore, their intent to limit competition, both in
the class of construction or as to character of material, was in itself neither
illegal nor fraudulent.
3. Insertion of Invalid Provisions of Labor Law Does Not Render
Contract Void. The fact that the commissioners required the insertion
of provisions of the Labor Law in the contract which were subsequently
held invalid, even if their action was illegal, does not make it fraudulent.
1903.J Knowles v. City of Xew Yokk. 431
N. Y. Rep.] Statement of case.
and the insertion of such provisions in the contract does not render it void
assuming that they increased the cost of the work; the contract may be
enforced, although but partially performed, especially as the commissioners,
if the invalidity of such provisions avoided the contract, might have
immediately, without competition or advertisement, entered into a new
contract with the same contractor, and they, therefore, had power to
waive illegal conditions and to continue the contract in force.
Knowles v. City of New York, 74 App. Div. 632, affirmed.
Knowles v. Pennsylvania Steel Co., 77 App. Div. 643, affirmed.
(Argued October 27, 1903; decided November 10, 1903.)
Appeal from a judgment entered August 25, 1903, upon
orders of the Appellate Division of the Supreme Court in the
first judicial department which affirmed an interlocutory
judgment of Special Term overruling a demurrer to the
answer of the defendants other than the Pennsylvania Steel
Company, reversed an interlocutory judgment of Special
Term overruling a demurrer to the complaint by the defend-
ant Pennsylvania Steel Company, and directed that the com-
plaint be dismissed as to all of the defendants.
The nature of the action and the facts, so far as material,
are stated in the opinion.
L. Laflin Kellogg and Alfred C. Pette for appellant. The
• facts alleged in the complaint constitute a good" and sufficient
cause of action under the Taxpayers' Statute. {Bush v.
O'Brien, 164 N. Y. 205 ; People ex rel. v. Featherstonhaugh,
172 X. Y. 126; Davenport v. Walker, 57 App. Div. 221;
Meyers v. City of New York, 58 App. Div. 534 ; Adams v.
Brennan, 117 111. 100; Meyers v. P. S. Co., 77 App. Div.
307 ; Pouulexter v. Greenhow, 114 U. S. 270 ; Norton v.
Shelby County, 118 U. S. 425 ; Mechem on Pub. Off. § 662 ;
Cooley on Const. Lim. [6th ed.] 222 ; People ex reL v. Nixon,
158 K Y. 221 ; People ex rel. v. GUa*on, 121 K Y. 631 ;
Davenport v. Walker, 57 App. Div. 221.)
William C. Trull and Delos McCurdy for the Pennsylvania
Steel Company, respondent. The complaint does not state
432 Knowles v. City of Xkw Yokk. [Nov.,
Points of counsel. [Vol. 176.
facts sufficient to constitute a cause of action. (PeopU ex rel.
v. Coler, 56 App. Div. 98 ; 166 N. Y. 1 ; People ex rel. v.
Coler, 166 N. Y. 144 ; Calhoun v. Millard, 121 N. Y. 69 ;
Talcott v. City of Buffalo, 125 N. Y. 280 ; Zieglerv. Chopin,
126 N. Y. 242; Bobimon v. GWroy, 30 N. Y. Snpp. 411,
413 ; N. Y. C. & H. B. B. B. Co. v. Maim, 24 N. Y. Supp.
963 ; Paul v. City of New York, 46 App. Div. 69.) The
contracts in question having been entered into in good faith
and partially performed, the city and the commissioners are
bound by the contracts, and, having received benefits there-
from, are estopped from questioning their validity. {Bissell
v. M S. Ii. B. Co., 22 N. Y. 265 ; W. A. Co. v. Barlow, fi8
K Y. 62 ; Mayor v. Sonneborn, 113 N. Y. 423 ; City of
Buffalo v. Balcom, 134 N. Y. 532, 536 ; B. G. L. Co. v.
Claffy, 151 N. Y. 24 ; Bush v. O'Brwn, 164 N. Y. 221, 222 ;
Alexander v. Danohue, 143 N. Y. 203 ; PeopU ex rel. v.
Coler, 166 N. Y. 1.) The objection that the contracts are
illegal because of the insertion therein of the provisions of
the Labor Law is not available to the plaintiff. (L. 1895, ch.
789 ; L. 1896, ch. 612 ; People v. B. F., etc., By. Co., 89
N. Y. 75.) Broad as are the provisions of the Taxpayers'
Act, and liberally as it should be construed, it was never
intended to confer upon the taxpayer the right or author-
ity to exercise the discretion which is vested in the bridge
commissioners or the municipality of the city of New York,
to determine whether or not it is for the interest of the public
to insist upon the invalidity of a particular covenant in a
contract. {People ex rel. v. Coler, 56 App. Div. 98.)
George L. Bives, Corporation Counsel (James McKeen of
counsel), for the City of New York et ah, respondents. The
complaint does not state facts sufficient to constitute a cause
of action. (B. G. L. Co. v. Claffy, 151 N. Y. 24 ; Bush v.
O'Brien, 164 N. Y. 215 ; Calhoun v. Millard, 121 N. Y.
169.) The plaintiffs demurrer to the answer interposed by
these defendants was properly overruled. (Hull v. Ely, 2
Abb. [N. C] 440 ; Kimball v. Hewitt, 15 Daly, 124 ; Coonxbs
1903.] Knovvles v. City of New York. 433
N, Y. Rep.] Opinion of the Court, per Cullen, J.
v. Pitt, 3 Burr. 1423 ; Commonwealth v. Churchill, 5 Mass.
174; Waters v. Jones, 13 Wall. 680; Tippecanoe Co. v. Z.
P. P. Co., 50 Ind. 118.)
Cullen, J. As to the practice in this case it is sufficient to
say that the judgment under review proceeded on the ground
that the complaint did not state a good cause of action and
the only question presented to us is the sufficiency of that
complaint. The action is brought by a taxpayer of the city
of New York against the city, the commissioners of the East
River Bridge and the Pennsylvania Steel Company to declare
void ix contract entered into between the said commissioners
and the company for the construction of the approaches to the
bridge ; to enjoin the continued performance of said contract
and the further payment of any moneys on account thereof
and to recover the moneys thitherto paid thereon. The com-
plaint sets forth the act of the legislature authorizing the con-
struction of the bridge (Chap. 789, Laws 1895) ; the appoint-
ment of certain of the defendants as commissioners under the
provisions of the act ; the advertisement by said commission-
ers for sealed proposals or bids for the construction of the
steel and masonry approaches to the suspended structure of the
bridge ; the specifications of the work to be done and the mate-
rial to be furnished ; the terms and conditions of the contract
into which the successful bidder would be required to enter ;
the receipt of several proposals from various bidders and the
amounts of their respective bids ; the award of the contract
to the defendant, the Pennsylvania Steel Company, and the
execution of the contract in pursuance of such award, and
the entry of such company upon the performance of said con-
tract. The legality of the contract is assailed on several
grounds stated in the complaint. First, it is alleged there
were discrepancies in the notices furnished to the contractors.
In some of the notices it was stated that a certified check for
six thousand dollars must accompany the proposals and that the
successful bidder would be required to execute a bond in the
penalty of two hundred thousand dollars for the perform-
28
434 Knowlks v. City of .Xkw York. [Nov.,
Opinion of the Court, per Cullen, J. [Vol. 176.
ance of the contract. In others the amount of the certi-
fied check was given as twelve thousand dollars and that
of the bond as four hundred thousand dollars. Second.
The notice contained the following provision : " As by far
the greater part of this work can be executed only by bridge
establishments of the first class, bids will be received only
from such parties as have the requisite plant and facili-
ties which have been in successful operation on work of simi-
lar character for at least one year. The bidders must be, in
the opinion ofr the commissioners, fully qualified, both by
experience and in appliances, to execute work of this charac-
ter and importance according to the highest standard of such
work at the present time." Third. The specifications pre-
scribed that the finished steel to be furnished under the con-
tract should not contain to exceed .06 of one per cent of phos-
phorus, .04 of one per cent of sulphur, .SO of one per cent of
manganese and .35 of one per cent of silicon. Fourth. That
the specifications and contract required the contractor to com-
ply with the provisions of the Labor Law (Chap. 415, Laws
1897) requiring the contractor to pay the prevailing rate of
wages, to employ his laborers only eight hours a day, and to
use only stone cut within the state of New York. The only
allegation of fraud in the complaint is the following : " Four-
teenth — Upon information and belief, that the said contracts
and specifications and the said advertisement for bids and
proposals for the doing of said work were fraudulently pre-
pared and issued, and the 6aid requirements of said advertise-
ments thaft bids would be received only from parties having
the requisite plant and facilities which had been in successful
operation on work of similar character for at least one year,
and of the specification providing that the finished steel
should not contain to exceed .06 of one per cent of phosphorus,
.04 of one per cent of sulphur, .80 of one per cent of man-
ganese, and .35 of one per cent of silicon were unreasonable
and unfair, and were fraudulently prepared and issued with
the purpose and intent of limiting competition and confining
the same to a small class of bidders, and did limit competition
11)03.] Knowlks v. City of Nkw York. 435
N. Y. Hep.] Opinion of the Court, per Clllen, J.
and confine the same to a small class of bidders, thereby
increasing the cost of the work as by said requirements,
although competent and reliable bidders with the requisite
plant and facilities desired to submit bids and proposals for
the doing of said work, they were prevented from so doing
unless th^ir plant and facilities had been in successful opera-
tion on work of a similar character for at least one year ; that
the requirement in the specification as to the elements of fin-
ished steel tended to, and actually did increase the price of the
work, because it prohibited the furnishing of steel by any
other company than the Carbon Steel Company, whose steel
alone meets the requirements and conditions of said specifica-
tions, although steel manufactured by other companies than
said Carbon Steel Company is equally good and well adapted
for the purposes of said proposed work." It is also charged
by the complaint that the provisions concerning the Labor
Law increased the cost of the work.
The commissioners for building the bridge did not derive
their powers, duties and authority from the charter but from
the special act of the legislature which provided for the con-
struction of the bridge. At the time of the commencement
of the work New York and Brooklyn were separate munici-
palities. The Greater New York charter of 1897 which con-
solidated the two cities did not in any way repeal or modify
the act of 1895 directing the construction of the bridge. The
prosecution of the work still continued under the commission-
ers appointed for the purpose until by the revised charter of
1901 (§ 595, subd. 5) the board of commissioners was abolished
and its powers and duties devolved upon the commissioner of
bridges of the city of New York. It was properly held by
both the courts below that the power of the commissioners in
the construction of the bridge was, under the statute, plenary
and not limited or qualified by charter provisions concerning
the letting of contracts. This was necessarily so for several,
reasons. At the time the work was commenced the com-
missioners were not agents of a single municipality but of
two cities whose charter provisions might conflict. Even
436 Knowlks v. City of New York. [Nov.,
Opinion of the Court, per Cullen, J. [Vol. 176.
after consolidation the provisions of the New York charter
relating to the letting of contracts were such as could not be
made applicable without subjecting the conduct of the trustees
to review and control by other city authorities, while the
intent of the statute was to vest power and discretion in the
construction work exclusively in the trustees. This was ren-
dered necessary by the exceptional character of the work. Its
magnitude was such as to prevent the work being let in a sin-
gle contract, and the unforeseen difficulties which might be
encountered would equally preclude such a course. While
some parts of the work and much material might be the sub-
ject of separate contracts, still it might be necessary to do
other parts by day's work. Speed in the construction of the
bridge was of the greatest importance, not only because of the
pressing public need for its use, but in view of the enormous
interest account continually increasing as the work progressed.
These considerations were appreciated by this court in the case
of People ex rel. Murphy v. Kelly (76 N. Y. 475), a litigation
which arose with reference to the New York and Brooklyn
bridge. Though the successful construction of the first
bridge doubtless solved many doubtful problems, the considera-
tions referred to by the court in the Kelly case bear with
almost equal force on the case now before us.
With this brief statement of the powers of the commis-
sioners we may now review the charges against them found
in the complaint. There is no allegation that the discrepancy
in the notices issued to contractors in any way affected the
bidding, nor is it alleged that it was other than a blunder and
not the result of design ; nor is there any allegation that the
award of the contract to the steel company was made in bad
faith. It is, however, charged that the commissioners fraudu-
lently prescribed in their notices and specifications that pro-
posals would be received from those bidders only who pos-
t sessed plants requisite to the work and whose plants had been in
successful operation for at least one year, and that there would
be excluded steel containing more than a specified percentage
of foreign elements, " with the purpose and intent of limiting
1903.J Kxowles v. City of New York. 437
N. Y. Rep.] Opinion of the Court, per Cullen, J.
competition and confining the same to a small class of bid-
ders ; " and it is also charged that the cost of the work was
increased thereby. While it is alleged that this action was had
fraudulently there is no allegation of fact to support the charge,
except the statement that it was made with the purpose and
intent of limiting the class of bidders. " The mere general
allegations of fraud or conspiracy are of no value as stating a
cause of action/' ( Wood v. Amory, 105 N. Y. 278 ; Van
Weel v. Winston, 115 IT. S. 228 ; Cohn v. Goldman, 76 N". Y.
284; Knapp v. City of Brooklyn, 97 id. 520.) The plaintiff
must state what the facts or intent were so that the court may
6ee whether they were fraudulent or not, and his characteriza-
tion of them as such is not sufficient. That the commissioners
intended by the specifications to limit the class of bidders is
unquestionable, and that they intended to limit the character
of material to be furnished under the contract is equally
unquestionable; but the imposition of such limitations so far
from being fraudulent may have been dictated and presumably
were dictated solely by regard for the advantage and interest
of the municipality. As already said, the commissioners were
not obliged to do the work or obtain the materials by contract,
and if they did see fit to contract they were not bound to
award the contract by competition. It was their duty to
see that the material of which the structure was built was of
such character as to secure safety and permanence, and this
even though at an enhanced cost. It may be true, as stated
in the complaint, that other steel just as good as that called
for by the specifications could be secured at a less price, but
the question of the kind of steel to be adopted was a question
to be determined by the commissioners, not by the courts.
So also the requirement that bidders should have a plant
which had been in successful operation for at least a year
might have been dictated by the wisest economy. Every one
knows that delays are sure to occur in great public improve-
ments. This very bridge, as well as its jfredecessor, is a par-
ticular example of that truth. The first bridge should have
been finished long before it was and the present bridge
438 Kxowles v. City ok Xkw York. [Nov.,
Opinion of the Court, per Cullen, J. [Vol. 176.
should have been finished long before now. A law suit
against the sureties of a defaulting or incompetent con-
tractor would be an insufficient compensation to the traveling
public for the inconvenience, or to the municipality for its
interest account running on at the rate of hundreds of thou-
sands of dollars a year. Therefore, as the commissioners were
not limited by the statute to performance of the work by con-
tract or by competition, their intent to limit the competition
both in class of contractors and in character of material was in
itself neither illegal nor fraudulent. If it had been charged
that the commissioners, knowing and believing that the restric-
tions and limitations imposed would not be conducive to the
successful prosecution of the work and would be disadvan-
tageous to the city of New York, had corruptly, with intent
to benefit the steel company or some other favorite contractor,
imposed these limitations, a different question would be pre-
sented. It is to be observed, however, that the plaintiff has
carefully abstained from any charge of that character. These
views also dispose of the objection to the commissioners' action
in that they failed to award the contract to the lowest bidder.
We are now brought to the effect of the incorporation of the
provisions of the Labor Law into the contract between the com-
missioners and the steel company. The contract was made
before this court had rendered its decision in the case of People
ex rel. Rodgers v. Coler (166 N. Y. 1), declaring the provisions
of that statute unconstitutional. Before that decision both
branches of the Supreme Court had upheld the validity of the
law. {Meyers v. City of New York, 32 Misc. Rep. 522 ; affirmed
on opinion below, 54 App. Div. 631.) It is doubtless true, as
claimed by counsel for the respondent, that an unconstitutional
statute is void and of no effect at the time of its enactment, not
merely from the subsequent adjudication to that effect by the
courts. It is also true that every one is presumed to know the law.
But every one of sense knows that this presumption is not in
strict accordance withthe fact ; that no one can know all the law,
and that some apparently know almost no law. The presump-
tion, however, obtains because it is necessary that it should
1903.] Knowles v. City of New York. 439
N. Y. Rep. ] Opinion of the Court, per Cullkn, J.
obtain for government to exist, otherwise the greatest igno-
rance would confer the greatest license. But while mistakes in
the law will not relieve one from liability for his act, in cases
where intent or good faith is the issue, the party's knowledge
of the law may be material. ( United States v. Realty Co.,
163 U. S. 427.) It is not pretended that in inserting these
conditions in the contract the commissioners acted in bad
faith on in the belief that the law was invalid. In the
state of the judicial decisions at the time prudence would
seem to have dictated that the commissioners should comply
with the statute. Therefore, though it may be that the com-
missioners' action in this respect was illegal, corrupt it was
not, nor is it charged to have been. In the Rodgers case, in
which the provisions of the Labor Law, so far as they related
to the action'of municipalities, were declared unconstitutional,
it was held, not that a contract imposing these conditions on
the contractor was void, but that the contractor could violate
them, and, notwithstanding such violation, recover his pay, not
on a quantum, meruit^ the value of the work done, but the con-
tract price. That decision controls the present case. The
learned counsel for the appellant seeks to distinguish the cases in
two respects. He contends, first, that in the Rodgers case there
was no proof that the Labor Law provisions of the contract
enhanced the cost of the work, while in the present one that
fact is expressly charged in the complaint. The distinction
is not well founded. The ground on which the decision in
the Rodgers case proceeded was that the provisions of the
Labor Law necessarily increased the cost of the work to the
municipality and that the legislature was without power to
impose upon the municipality and its taxpayers such a burden.
The second distinction sought to be drawn is that in the
Rodgers case the contract had been completed while here it
has not. It is, however, charged in the complaint that the
contractor had entered on the performance of the work and
received payments on account of it from the city, which the
plaintiff seeks to have returned. So far as the payments had
been actually made the Rodgers case unquestionably governs
440 Knowles v. City of New York. [Nov.,
Opiuion of the Court, per Cullen, J. [Vol. 176.
and the contractor cannot be required to restore them. But
the principle of the Podgers case seems equally applicable to
the further execution of the contract. The contract is an
entire one. The contractor, naturally, in the ordinary course
of business has incurred expense in contemplation of per-
formance of the whole contract. Payment only for the work
done and materials furnished would not compensate it for the
expenditures made or the obligations assumed. The differ-
ence in fact on which the counsel lays stress justifies no dis-
tinction in principle. We reiterate the language of Judge
Haight in People ex rel. North v. Featherstonhaugh (172 N.
Y. 112) : " But the contract in this case does not depend upon
the Labor Law for its consideration. The provisions of that
statute incorporated into the specifications are extraneous
matters which have no material effect upon the main provi-
sions of the contract, and cannot affect those provisions unless
it may tend to increase the cost of the work. The contractors
must be presumed to have known the law, and, consequently,
to have known that the provision with reference to the rate
of wages was unconstitutional. They are deemed, therefore,
to have made their bid with this understanding, even
independent of the notice which was given to them by the
commissioners."
Though we rest our disposition of this branch of the case
on the decision of People ex rel. Podgers v. Coler, there is
another ground on which the action of the courts below should
be upheld. As already said, though the action of the com-
missioners in inserting in the contract the conditions of the
Labor Law may have been illegal, it was not fraudulent or
corrupt. If these provisions avoided the contract, still as the
commissioners might immediately after the decision of this
court declaring their illegality have without competition or
advertisement entered into a new contract with the steel com-
pany upon the same terms and conditions, except those
required by the Labor Law (a course which is by no means
certain it would not have been prudent to take rather than to
interrupt and delay the prosecution of the work), it is clear
1903.] Becker v. City of New York. 441
N. Y. Rep.] Points of counsel.
that they could have waived the illegal conditions. Hence it is
not within the power of the taxpayer to cancel or annul a con-'
tract which the commissioners determined to continue in force.
The judgment appealed from should be affirmed, with costs.
Parker, Ch. J., Gray, Haight, Martin, Vann and Wer-
ner, JJ., concur.
Judgment affirmed. * ;
Jennie T. B. Becker, as Executrix of James Brady, Deceased,
Respondent, v. The City of New York, Appellant.
New York City — Street Improvement — When City Not Liable
for Damages Caused by Mistakes of City Surveyor in Fixing Grades.
Under a street improvement contract executed by the commissioner of
public works of the city of New York pursuant to an ordinance directing
the regulating and grading of an avenue, which contract provided that
"a city surveyor will be employed by the parties of the first part to see
that the work is completed in conformity to the profile and to ascertain
and certify the quantity of work done. Said surveyor, at the request of
the contractor, will be directed to designate and fix grades for his guid-
ance during the progress of the work without charge, provided that the
said parties of the first part shall nqt be liable for any delay or for any
errors of said surveyor in giving such grades and said surveyor shall be
considered as the agent of the contractor so far as giving such grades is
concerned and not the agent of the city of New York," to which contract
a profile was attached — the contractor is not entitled to recover for losses
suffered in the grading of the avenue by reason of the mistakes of the city
surveyor in grades given by him although the contractor did not request
that the grades be furnished him, and upon discovering the mistakes noti-
fied the superintendent of street improvement of them and proceeded only
after his positive direction to conform the avenue to the grades given, for
the reason that the duty of the contractor was to follow no grade except
such as was in accordance with the profile, and the direction of such
officer was a material modification of this requirement which he had no
power to make in the absence of an express authorization by the proper
authorities; and, therefore, the contractor proceeded at his peril to obey
such direction, and in not relying upon the profile alone.
Becker v. City of New York, 77 App. Div. 635, modified.
(Argued October 19, 1903; decided November 24, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered Janu-
442 Becker v. City of New York. [Nov.,
Opinion of the Court, per Haioht, J. [Vol. 176.
ary 10, 1903, affirming a judgment in favor of plaintiff entered
upon a verdict and an order denying a motion for a new trial.
The nature of the action and the facts, so far as material,
are stated in the opinion.
George L. Rives, Corporation Counsel {Theodore Connoly
and Terence Farley of counsel), for appellant. The plaintiff is
not entitled to recover for losses suffered on account of mistakes
in grades furnished the contractor by the city surveyor. (Cluff
v. Day, 141 N. Y. 580 ; Roberts & Co. v. Buckley, 145 N.
Y. 215; Matter of Laitdy, 161 N. Y. 429; Wickham v. L.
V. R. R. Co., 85 App. Div. 182; O'Brien v. Mayor, ete.,
139 N. Y. 576.)
L. Laflin Kellogg and Alfred C. Pette for respondent.
The plaintiff was entitled to recover the sum of $9,724, the
increased cost of the work occasioned by the errors and mis-
takes in the lines and grades given by the engineer in charge.
(L. 1882, ch. 410 ; Mulholland v. Mayor, etc., 113 N. Y. 631 ;
Horgan v. Mayor, etc., 160 N. Y. 510.)
Haight, J. The plaintiff's testator was the assignee of the
claim of one Benjamin J. Carr, Jr., and brings this action to
recover the damages suffered by him arising out of his con-
tract with the defendant for regulating and grading Claremont
avenue from One Hundred and Twenty-second street to One
Hundred and Twenty-seventh street in the city of New York.
In our review of the case it becomes necessary to discuss but
one of the various claims in controversy between the parties,
and that arises out of the second count in the complaint, in
which damages are asked for the errors of the city surveyor
in giving an incorrect grade of the street, by which the con-
tractor was misled and excavated a greater amount of rock
than was required by the contract and was then compelled
to fill in the excavation so as to conform the grade to the
specifications.
This case has been once previously considered in this court
(170 N. Y. 219). The judgment was then reversed, upon
190JJ.] Becker v. City of New York. 443
N. Y. Rep.] Opinion of the Court, per Haight, J.
grounds not material to be now considered, but in the opinion
then written it was stated that there could be no recovery for
damages claimed by reason of the errors in the grade given
by the surveyor. It is now claimed that upon the retrial
further evidence was presented as to this claim, upon which
'the trial court, under the objection and exception of the
defendant, submitted the same to the jury and a verdict has
been found thereon for the plaintiff amounting to the sum of
$8,520. The new evidence upon which the plaintiff relies
for the purpose of establishing this claim is found in the testi-
mony of the contractor, and is to the effect that he saw Mr.
Dean, the superintendent of street improvements, after the
work had been in progress from fifteen to seventeen months, in
his carriage at One Hundred and Twenty-second street and
Claremont avenue, and then requested him to go and look at the
discrepancy in the grade lines ; that Dean replied to the effect
that he could do nothing in the matter ; that his letter to him
was specific, and that he would have to follow the grades and
lines as given by Mr. Slator, the engineer in charge. The letter
referred to had been written on the 18th of July, 1890, six or
eight months before, and in that letter there appears a similar
statement to the effect that he would have to follow the lines
and grades given by the engineer in charge. This letter was
written in answer to a letter by the contractor calling his
attention to the error in the lines of the street as given by the
surveyor before any error in the grade had been discovered.
This letter was considered by the court on the former review,
and we shall not discuss it further. We are thus brought to
the consideration of the question as to whether the direction
given by the superintendent of street improvements to follow
the grade lines given by the engineer in charge justifies a
recovery.
The contract, so far as material upon this branch of the
case, provides that " a city surveyor will be employed by the
parties of the first part to see that the work is completed in
conformity to the profile, and to ascertain and certify the
quantity of work done. Said surveyor at the request of the
444 Becker v. City of New York. [Nov.,
Opinion of the Court, per Haight, J. [Vol. 176.
contractor, will be directed to designate and fix grades for his
guidance daring the progress of the work without charge,
provided that the said parties of the first part shall not be
liable for any delay or for any errors of said surveyor in giv-
ing such grades, and said surveyor shall be considered as the
agent of the contractor so far as giving such grades is con-
cerned and not the agent of the City of New York." A pro-
file was attached to the contract, and the contract was exe-
cuted by the commissioner of public works of the city and by
the contractor, pursuant to an ordinance of the mayor, alder-
men and commonalty of the city of New York, adopted on
the 23d o!ay of July, 1889, in which the regulating and grad-
ing of this avenue was directed and sealed estimates were
invited from bidders according to the plans and specifications
which were attached to and made a part of the contract. As
we understand this provision of the contract it became the
duty of the contractor to grade the street in accordance with
the profile. He could employ his own surveyor, or if he
asked the city surveyor would give him the grades, but
upon the understanding that the city should not be liable for
the errors of the surveyor, and that in giving such grades he
should be considered to be the agent of the contractor. The
evidence tends to show that the city surveyor did set stakes
and mark the grades thereon and that the grades so marked
were erroneous and that the contractor in excavating to the
depth required by the marks upon the stakes excavated to a
greater depth than required, which had to be refilled and that
he suffered damages in consequence thereof.
The contractor now claims that he was- compelled to per-
form the work in accordance with the grades given by the
surveyor, by the superintendent of street improvements, who,
after the contractor had called his attention to errors in the
grade, directed him to follow the lines and grades as given by
the surveyor. As we have seen from the contract, the con-
tractor was required to conform the street to the profile. He
was not obliged to conform the grade to that given by the
city surveyor, but could have ascertained the same through
1903.] Becker v. City of New York. 445
N. Y. Rep.] Opinion of the Court, per Haight, J.
any other surveyor, and if he saw fit to request the city sur-
veyor to give him the grades he made him his own agent and
agreed that the city should not be liable for his errors. The
direction of the superintendent of street improvements, to
the contractor to proceed and conform the street to the grades
given by the city surveyor, is inconsistent with these pro-
visions of the contract and is a material variation of its
terms. The question thus arises as to whether this officer
had the power to modify or change the contract in this
regard. He was a subordinate officer in the department
of public works. His duties required him to watch the
work of contractors and see that their work was done in
accordance with the requirements of the contract and upon
the completion of the work to give a certificate. We think
he had no power to change or modify the contract, or to
relieve the contractor from the provisions in question. This
question was disposed of in tins court, as early as the case of
Bonesteel v. Mayor, etc., ofN. Y. (22 N. Y. 162). In that case
the common council of the city of New York had passed an
ordinance directing the regulating and grading of Seventieth
street from Tenth avenue to the Hudson river, the work to be
performed under the directions of the street commissioner
and the city surveyor. The contract provided that the rock
was to be excavated two feet below the line of the curbstone
grade. The contractor excavated the rock only one foot below
such grade and claimed that this was done by the direction of
the city surveyor. Davies, J., in delivering the opinion of
the court, says with reference to this contention that " the
ordinance under which the work was done provided that the
street was to be regulated and graded under such direc-
tions as should be given by the street commissioner and one
of the city surveyors. The first suggestion to be made in
reference to this provision is, that the ordinance would seem
to contemplate joint directions by the street commissioner
and the city surveyor. The direction to excavate the rod
only to the depth of one foot, would appear to have been
given by the surveyor only, without the cooperation of the
446 Becker v. City of New York. [Nov.,
i
Opinion of the Court, per Haight, J. [Vol. 176.
street commissioner. But a conclusive answer to this view of
the case is, that the provision of the ordinance that the work
should be done under such directions as should be given by
these officers, conferred no authority upon them, or either of
them, to change or modify in any essential particular the pro-
visions of the contract made and entered into for the per-
formance of the work. The ordinance of the defendants
contemplated that the work was to be done under a written
contract. The basis of that contract was the proposal or
specification issued by the proper head of department, invit-
ing estimates. When they were received and the award made
to the lowest bidder, and that award confirmed by the common
council, all the materials for the written contract were provided.
When the contract finally became perfected, signed and exe-
cuted, no officer of the defendants had any authority to change
its provisions unless expressly authorized by the common council.
No such authority has been shown in this case, or any acquies-
cence by the defendants in the departure from the terms of the
contract made by the plaintiff's assignor with the acquiescence
and pursuant to the directions of the city surveyor. Such
departure had, therefore, no legal justification, and the plaintiff
has, therefore, himself shown a non-performance on his part of
what he claims was his contract with the defendants." Dillon
in his work upon Municipal Corporations, at section 451 (third
edition), says with reference to the variance or modification of
a contract, that " where the contract is made by ordinance in
the statutory mode it can only be repealed or annulled in the
same manner." In City of Terre Haute v. Lake (43 Ind.
480) it was held that the common council of a city can only
contract by an order, resolution or ordinance passed in the
manner required by statute, and when thus made it can be
repealed or annulled only by the vote of the common council.
(See, also, Glomus v. Black, 50 N. Y. 145 ; Fitzgerald v.
Moran, 141 N. Y. 419; Woodruff \. Roch. & Pittsburgh
R. R. Co., 108 N. Y. 39 ; Hague v. City of Philadelphia,
48 Pa. St. 527, and North, Pac. L. cfe M. Co. v. East Port-
land, 14 Oregon, 3.)
11)03.] Becker v. City ok New York. 447
N. Y. Rep.] Dissenting opinion, per Martin, J.
The judgment should be reversed and a new trial ordered,
with costs to abide the event, unless the plaintiff within twenty
days stipulates that the judgment may be reduced in the sum
of $S,520, and if such stipulation is given, then the judgment
be modified accordingly, and as so modified affirmed, without
costs of this appeal to either party.
Martin, J. (dissenting). The plaintiff's testator was the
assignee of a claim of one Benjamin J. Carr, Junior, arising
under a contract made between him and the city of New York
in 1889, for regulating and grading Claremont avenue from
122d street to 127th street. This action has been several times
tried and was before this court on a former appeal. Although t
numerous questions were presented upon the argument and
by the briefs of counsel, yet, in view of our previous decision
in this case, but a single question is presented which we deem
it necessary to consider at this time. The question we shall
consider arises under the second cause of action stated in the
complaint, by which the plaintiff seeks to recover the damages
sustained by the original contractor by reason of his having
been required by the defendant to perform a large amount of
unnecessary work in the fulfillment of his contract.
The contention of the plaintiff is that this loss was occa-
sioned by the action of the defendant's officers and employees
in giving the contractor an incorrect grade of the street and
then compelling him to conform the street to the grade as thus
given, although he at the time insisted that it was wrong and
objected to it as inaccurate. The provision of the contract
relied upon by the defendant to exempt it from such liability
in effect provides that a city surveyor, at the request of the
contractor, will be directed to designate and fix grades for his
guidance during the progress of the work without charge,
provided that the city shall not be liable for any delay or any
errors of such surveyor in giving such grades, and the sur-
veyor shall be considered as the agent of the contractor so far
as the giving of such grade is concerned, and not as the agent
of the city.
448 Becker v. City of Nkw York. [Nov.,
Dissenting opinion, per Martin, J. [Vol. 176.
It is quite evident under this provision of the contract that
if the contractor requested the city surveyor to designate and
fix the! grades the latter would be regarded as his agent, and
the city would not be liable for any delays or errors of such
surveyor. So, also, if, without objection, the contractor used
the grades thus given, thereby acquiescing in and ratifying
the surveyor's action, and accepting him as his agent within
the terms of the contract, the city would not be liable, and we
so held in the former decision of this case (170 N. Y. 219).
Bnt we also held that the contractor was entitled to recover
for losses suffered in grading this street caused by the errors
of the city surveyor in fixing the center line, where it was
xdone by the city without the request or acquiescence of the
contractor, and the contractor, afterwards distrusting its accu-
racy, sought to have it properly corrected, but failed, and
finally proceeded with the work on that line as he was directed
to do by the superintendent of streets.
When our former decision was rendered there was evidence
tending to show that that was the situation so far as the center
line established by the city surveyor was concerned, and it was
held that the loss sustained by the contractor, due to the inac-
curate line, was a proper charge against the defendant and
might be recovered. It was then said : " It cannot be reason-
ably said that under this state of facts the contractor had, by
acquiescence, made the city surveyor his agent. On the con-
trary, the contractor was reasonably alert to discover the cor-
rect center line, and followed the one furnished him, which
he had been advised by his own surveyor was inaccurate, only
when the superintendent of street improvements, after being
fully advised as to all the facts, ordered him to do so." As
the evidence then stood, the loss sustained by the contractor
on account of the mistakes as to the grades other than as to
the center line, was not recoverable, as there was then no suf-
ficient evidence to show that the contractor had, after objec-
tion by him, proceeded with the work in accordance with such
grades under compulsion or the positive direction of the city
authorities. Upon the last trial, however, the evidence in that
1903.] Becker v. City of New York. 449
N. Y. Rep.] Dissenting opinion, per Martin, J.
respect was changed, as the contractor then not only testified
that he did not request the city surveyor to give him either
stakes, lines or grades, but also that after discovering the inac-
curacy of the grade furnished by the city surveyor in other
respects, as well as to the center line, he saw the superintend-
ent of street improvements, called his attention to it and
requested him to look at the discrepancies in those respects
and to the defects in the lines and grade. To this request the
superintendent replied that he could do nothing in the matter,
but that the letter he wrote, in which he said, " you will pro-
ceed with your work * * * in accordance with the
grade lines and stakes as given by Mr. Slator, surveyor in
charge," was specific, and that the plaintiff would have to
follow the grades and lines as given by the engineer in charge.
This evidence was corroborated by the witness Burke, who
testified that he was present upon the work when the defend-
ant's contract with the original contractor was discussed ; that
the contractor told the superintendent that there had been a
mistake made by Slator, and the superintendent replied that
he would not get out of his wagon and examine those things,
but that he should obey the orders of Mr. Slator, the engineer
in charge of the work, and work by his stakes only. With
this evidence in the case the jury was justified in finding that
the contractor was reasonably alert to discover the correct
grade, that he apprised the superintendent of the inaccuracy
of that furnished by the surveyor, and that he performed the
work in accordance with the lines and grades thus given only
when the superintendent of street improvements, being
advised of such inaccuracies, ordered him to do so. Under
these circumstances it seems quite clear that upon the
authority of our former decision in this case the recovery on
the last trial must be sustained, or the principle of that
decision overruled.
It is to be observed that the provision in the contract upon
which the defendant relies relates to grades as a whole, and
not to lines or grades separately. Hence, the term " designate
and fix grades" is to be construed as involving all the essen-
29
448 Bhcker v. City of New York. [Nov.,
Dissenting opinion, per Martin, J. [Vol. 176.
It is quite evident under this provision of the contract that
if the contractor requested the city surveyor to designate and
fix the grades the latter would be regarded as his agent, and
the city would not be liable for any delays or errors of such
surveyor. So, also, if, without objection, the contractor used
the grades thus given, thereby acquiescing in and ratifying
the surveyor's action, and accepting him as his agent within
the terms of the contract, the city would not be liable, and we
so held in the former decision of this case (170 N. Y. 219).
But we also held that the contractor was entitled to recover
for losses suffered in grading this street caused by the errors
of the city surveyor in fixing the center line, where it was
done by the city without the request or acquiescence of the
contractor, and the contractor, afterwards distrusting its accu-
racy, sought to have it properly corrected, but failed, and
finally proceeded with the work on that line as he was directed
to do by the superintendent of streets.
When our former decision was rendered there was evidence
tending to show that that was the situation so far as the center
line established by the city surveyor was concerned, and it was
held that the loss sustained by the contractor, due to the inac-
curate line, was a proper charge against the defendant and
might be recovered. It was then said : " It cannot be reason-
ably said that under this state of facts the contractor had, by
acquiescence, made the city surveyor his agent. On the con-
trary, the contractor was reasonably alert to discover the cor-
rect center line, and followed the one furnished him, which
he had been advised by his own surveyor was inaccurate, only
when the superintendent of street improvements, after being
fully advised as to all the facts, ordered him to do so." As
the evidence then stood, the loss sustained by the contractor
on account of the mistakes as to the grades other than as to
the center line, was not recoverable, as there was then no suf-
ficient evidence to show that the contractor had, after objec-
tion by him, proceeded with the work in accordance with such
grades under compulsion or the positive direction of the city
authorities. Upon the last trial, however, the evidence in that
1903.] Becker v. City of New York. 449
N. Y. Rep.] Dissenting opinion, per Martin, J.
respect was changed, as the contractor then not only testified
that he did not request the city surveyor to give him either
stakes, lines or grades, but also that after discovering the inac-
curacy of the grade furnished by the city surveyor in other
respects, as well as to the center line, he saw the superintend-
ent of street improvements, called his attention to it and
requested him to look at the discrepancies in those respects
and to the defects in the lines and grade. To this request the
superintendent replied that he could do nothing in the matter,
but that the letter he wrote, in which he said, " you will pro-
ceed with your work * * * in accordance with the
grade lines and stakes as given by Mr. Slator, surveyor in
charge," was specific, and that the plaintiff would have to
follow the grades and lines as given by the engineer in charge.
This evidence was corroborated by the witness Burke, who
testified that he was present upon the work when the defend-
ant's contract with the original contractor was discussed ; that
the contractor told the superintendent that there had been a
mistake made by Slator, and the superintendent replied that
he would not get out of his wagon and examine those things,
but that he should obey the orders of Mr. Slator, the engineer
in charge of the work, and work by his stakes only. With
this evidence in the case the jury was justified in finding that
the contractor was reasonably alert to discover the correct
grade, that he apprised the superintendent of the inaccuracy
of that furnished by the surveyor, and that he performed the
work in accordance with the lines and grades thus given only
when the superintendent of street improvements, being
advised of such inaccuracies, ordered him to do so. Under
these circumstances it seems quite clear that upon the
authority of our former decision in this case the recovery on
the last trial must be sustained, or the principle of that
decision overruled.
It is to be observed that the provision in the contract upon
which the defendant relies relates to grades as a whole, and
not to lines or grades separately. Hence, the term " designate
and fix grades " is to bo construed as involving all the essen^
29
448 Bmckkr v. City of New York. [Nov.,
Dissenting opinion, per Martin, J. [Vol. 176.
It is quite evident under this provision of the contract that
if the contractor requested the city surveyor to designate and
fix the* grades the latter would be regarded as his agent, and
the city would not be liable for any delays or errors of such
surveyor. So, also, if, without objection, the contractor used
the grades thus given, thereby acquiescing in and ratifying
the surveyor's action, and accepting him as his agent within
the terms of the contract, the city would not be liable, and we
so held in the former decision of this case (170 N. Y. 219).
But we also held that the contractor was entitled to recover
for losses suffered in grading this street caused by the errors
of the city surveyor in fixing the center line, where it was
vdone by the city without the request or acquiescence of the
contractor, and the contractor, afterwards distrusting its accu-
racy, sought to have it properly corrected, but failed, and
finally proceeded with the work on that line as he was directed
to do by the superintendent of streets.
When our former decision was rendered there was evidence
tending to show that that was the situation so far as the center
line established by the city surveyor was concerned, and it was
held that the loss sustained by the contractor, due to the inac-
curate line, was a proper charge against the defendant and
might be recovered. It was then said : " It cannot be reason-
ably said that under this state of facts the contractor had, by
acquiescence, made the city surveyor his agent. On the con-
trary, the contractor was reasonably alert to discover the cor-
rect center line, and followed the one furnished him, which
he had been advised by his own surveyor was inaccurate, only
when the superintendent of street improvements, after being
fully advised as to all the facts, ordered him to do so." As
the evidence then stood, the loss sustained by the contractor
on account of the mistakes as to the grades other than as to
the center line, was not recoverable, as there was then no suf-
ficient evidence to show that the contractor had, after objec-
tion by him, proceeded with the work in accordance with such
grades under compulsion or the positive direction of the city
authorities. Upon the last trial, however, the evidence in that
1903.] Becker v. City of New York. 449
N. Y. Rep.] Dissenting opinion, per Martin, J.
respect was changed, as the contractor then not only testified
that he did not request the city surveyor to give him either
stakes, lines or grades, but also that after discovering the inac-
curacy of the grade furnished by the city surveyor in other
respects, as well as to the center line, he saw the superintend-
ent of street improvements, called his attention to it and
requested him to look at the discrepancies in those respects
and to the defects in the lines and grade. To this request the
superintendent replied that he could do nothing in the matter,
but that the letter he wrote, in which he said, " you will pro-
ceed with your work * * * in accordance with the
grade lines and stakes as given by Mr. Slator, surveyor in
charge," was specific, and that the plaintiff would have to
follow the grades and lines as given by the engineer in charge.
This evidence was corroborated by the witness Burke, who
testified that he was present upon the work when the defend-
ant's contract with the original contractor was discussed ; that
the contractor told the superintendent that there had been a
mistake made by Slator, and the superintendent replied that
he would not get out of his wagon and examine those things,
but that he should obey the orders of Mr. Slator, the engineer
in charge of the work, and work by his stakes only. With
this evidence in the case the jury was justified in finding that
the contractor was reasonably alert to discover the correct
grade, that he apprised the superintendent of the inaccuracy
of that furnished by the surveyor, and that he performed the
work in accordance with the lines and grades thus given only
when the superintendent of street improvements, being
advised of such inaccuracies, ordered him to do so. Under
these circumstances it seems quite clear that upon the
authority of our former decision in this case the recovery on
the last trial must be sustained, or the principle of that
decision overruled.
It is to be observed that the provision in the contract upon
which the defendant relies relates to grades as a whole, and
not to lines or grades separately. Ilence, the term " designate
and fix grades " is to bo construed as involving all the essen-
29
450 Becker v. City of New Yokk. [Nov.,
Dissenting opinion, per Martin, J. [Vol. 176.
tials necessary to the complete designation and establishment
of the entire grade, including the necessary lines as well as
the depth and height of the excavation or till. Therefore, in
considering tiie question of the defendant's liability for having
furnished the contractor with an erroneous grade and having,
with notice of its inaccuracy, insisted upon and required him
to construct the street upon and in accordance with it, the
same principle as to the defendant's liability should be applied
to the error relating to the required excavation or till, as was
applied to the error as to the center line. "While in our
former decision we expressly declined to pass upon the con-
struction of that term, it was, however, said : " It is to be
observed that this clause of the contract does not in terms
refer to lines, or center lines, but requires the surveyor to
' designate and fix grades.' It may be that the designation
and fixing of grades includes the giving of lines and center
lines." We now think that to hold that the term " designate
and fix grades " does not include both lines and grades, and
apply tox required excavation and filling as well as to the
center line, would be too narrow and an incorrect construc-
tion of that term as used in and intended by this contract.
Therefore, we are of the opinion that, in view of the change
in the evidence, the same rule applies to the furnishing of the
grades by the city surveyor and the requirement of the super-
intendent of street improvements that the work should be con-
formed thereto, as was applied in the former decision to the
line so furnished, the facts as they now stand being essentially
the same as to each. Obviously it was upon the basis of our
former decision that the case was tried and determined by the
courts below, as upon the last trial the learned. trial court
expressly charged the jury that before the plaintiff could
recover she must prove to its satisfaction that the contractor
was directed to follow the grades and lines given by the sur-
veyor, after the defendant's attention was called to the fact
that they were incorrect.
But it is sought to be maintained that the superintendent of
Street improvements, who was the chief officer under the com-
1903.] Becker v. City of New York. 451
N. Y. Rep.] Dissenting opinion, per Martin, J,
missioner of public works having direct charge and control of
the work upon contracts for the regulating and grading of
streets, had no right to direct the contractor to follow any
grade except such as was in accordance with the profile. It
is also claimed that the grades as given were not according to
the profile, and, consequently, although the contractor was
required to perform the work under the direction of the
bureau of which the superintendent was the head, yet that the
contractor was bound at his peril to disregard any and all
directions given him by such officer and rely upon the pro-
file alone. It does not seem possible that a city could, by its
officers in charge of the work, compel the contractor to do
work in a specified way, and then require him to expend large
additional sums in doing it otherwise, without liability upon
the part of the city to respond in damages for the extra work
occasioned by its wrongful direction, especially where, as in
this case, the trial court was justified in finding not only that
the action of the city surveyor in giving the final certificate
was false and made in bad faith, but also that the contractor
was required by the superintendent to perform the work in
accordance with the grade furnished by the city surveyor,
against the protest of the contractor, and after notice by him
to the superintendent that the grades thus given Were errone-
ous. As sustaining the doctrine contended for by the defend-
ant, it relies upon the cases of Bonesteel v. Mayor, etc., of N.
Y. (22 N. Y. 162) ; Glacius v. Black (50 N. Y. 145) ; Wood-
ruff v. Roch. i& Pittsburgh li. li. Co. (108 N. Y. 39), and
Fitzgerald v. Moran (141 N. Y. 419).
An examination of those cases discloses that they are clearly
distinguishable from the case at bar, and were decided upon
principles which have no application here. Iu the Bonesteel
case it was held that where work was done under an ordinance
for the grading of the street, and the contract under it pro-
vided in express terms the depth of the excavation and all the
particulars of the work, to be done under the direction of the
street commissioner, a change of depth from two feet to one
could not be made by the officer having superintendence of
452 Becker v. City of New York. [Nov.,
Dissenting opinion, per Martin, J. [Vol. 176.
the work ; that as the common council authorized the street
commissioner to contract only for the excavation of rock one
foot below the grade, he had no right to enter into a contract
for its excavation two feet below the line of the curbstone
grade ; and that by assuming to make a contract different
from that authorized by the common council, he acted without
authority, and, hence, there could be no recovery. The
Glacim case merely holds that where one enters into a con-
tract to furnish materials and perform work, and materials
are furnished and work performed, but not done in the man-
ner stipulated, no action will lie for the compensation, and
that, at least, a substantial performance must be shown before a
recovery can be had. In Woodruff v. Iioch. <& P. Ji. R. Co.
the plaintiff as sub-contractor made a cut through an elevation,
and after it was substantially completed the sides caved in and
the plaintiff removed the earth upon the request of the engi-
neers in charge under an agreement that it should be taken out
for a price specified, it, however, appearing that the work was
under the supervision of the original contractors, and that they
paid all the engineers and entered into sub-contracts for the
performance of the work. In an action against the railroad
company it was held that the evidence failed to show any lia-
bility upon its part, as it did not disclose that the work was
done under any express or implied agreement with it. The
Fitzgerald case was an action upon a contract for plastering,
which provided that certain designated cement should be
mixed with equal parts of good, sharp and dry Band, while the
mixture used was made of two parts of sand to one of cement,
and it was held that neither the superintendent nor the archi-
tect had any right to thus change the contract. Clearly the
principle of those cases has no application to the question
under consideration.
When, however, we examine the cases of Messenger v.
City of Buffalo (21 K Y. 196, 199) ; Midholland v. Mayor,
etc., of N. Y. (113 N. Y. G31, 632); Brady v. Mayor, etc.,
ofN. Y. (132 N. Y. 415, 427), and Ilorgan v. Mayor, etc.,
of N. Y. (160 N. Y. 516, 523), we there find the prin-
1903.] Becker v. City of New York. 453
N. Y. Rep.] Dissenting opinion, ptr Martin, J.
ciple applicable to the case at bar, and abundant authority
to sustain the recovery in this action. In the Messenger case
the city of Buffalo employed the plaintiff to pave a street and
to furnish the sand for that purpose under a contract by which
it was to grade the street, and the work of paving was to be
performed under the direction of the street commissioner.
The street was so excavated that a quantity of sand beyond
that specified in the contract was necessary. The plaintiff, by
the direction of the street commissioner, furnished the excess
required, and this court held that he was entitled to compensa-
tion therefor. In that case it was claimed that when the
plaintiff found he could not fulfill his contract in all particu-
lars he should have obtained the action of the common council
before commencing or continuing the work, but this court
said : " This could not have been absolutely required to enable
him to recover. The corporation had authorized the street
commissioner to make the contract, and the contract made pro-
vided that the work should be done under the direction of such
commissioner. This plainly intended that the street commis-
sioner might direct in regard to variations rendered necessary
by the action of the city authorities." In the Mulholland
case there was a contract between the plaintiff's assignor and
the defendant for grading and flagging one of its streets.
Through the erroneous action of the defendant's engineer,
more work was required of the contractor than would have
been necessary under the contract, and it was held that the
plaintiff was entitled to recover. The court said : " The change
was erroneous, and if the correction of the error, or by reason of
it, the plaintiff performed extra labor and incurred increased
expense, he is entitled to recover according to its value and
amount." In Brady v. Mayor, etc., ofN. Y., Parker, J., said :
" It is quite clear that it was the intention of the parties under
this contract that the contractor should in its execution be
governed by the direction of such of defendant's officers as it
declared in the contract should represent it. So if the grade
should be mistakenly given to the contractor by the surveyor
and the work should be done in conformity therewith, and
454 Becker v. City of New York. [Nov.,
Dissenting opinion, per Martin, J. [Vol. 176.
certificates of completion afterwards given, the defendant
could not thereafter object that the plaintiff shonld not be
compensated because, as the result of a misdirection by its
officers, the specifications had not been literally complied
with." The Mulholland case was there considered and the
principle established by it reaffirmed. These cases were again
examined by this tourt in Horgan v. Mayor, etc., of N. Y.,
where Judge Bartlett said : " It has been frequently held
that if a municipal corporation, by its own act, causes the work
to be done by a contractor to be more expensive than it other-
wise would have been according to the terms of the original con-
tract, it is liable to him for the increased cost or extra expense."
(See, also, Moore v. Mayor, etc., of N. Y, 73 N. Y. 238 ;
EeiUy v. City of Albany, 112 N. Y. 30, and Van DoUen
v. Bd. of Education, 162 N. Y. 446, 452.)
An examination of the foregoing authorities and the con-
sideration of the decision in this case upon a former appeal
render it quite obvious that under the evidence as it appears
in the record of the trial under review, the plaintiff was enti-
tled to recover for the additional work he was compelled to
perform by reason of the erroneous grade given him by the
surveyor in charge and according to which he was required
by the superintendent of street improvements, with a full
knowledge of the facts, to grade the street and by whom
he was subsequently required to change such grade at a largo
additional outlay.
These considerations lead to the conclusion that the judg-
ment appealed from should be affirmed.
Gray, Cullen and Werner, JJ., concur with Haight, J. ;
Parker, Ch. J., and Vann, J., concur with Martin, J.
Judgment accordingly.
1903.] De Garmo v. Phelps. 455
N. Y. Rep.] Statement of case.
E. May De Garmo, Appellant, v. George W. Phelps ot al.,
Respondents.
Champerty— When Purchase-Money Mortgage not Champertous.
Judicial sales are not within the condemnation of the Statute of Cham-
perty (1 R. S. 739, §§ 147, 148; Real Property Law, 1895, ch. 547, § 225);
a purchaser of land sold under a decree in a foreclosure action acquires
a perfect title, although at the time the premises are in the actual pos-
session of one claiming title thereto under a tax deed; a mortgage
executed by him on the same day to the plaintiff to secure a part of the
purchase price is not void under the statute since the deed and the mort-
gage take effect at the same instant, constituting but one act, and the mort-
gagee, to the extent of his mortgaged interest, whether it be considered
a lien or a conditional estate, must be regarded as much a purchaser at
the judicial sale as the mortgagor, and acquires the title not from him
but through him as a mere conduit; the assignee of such purchase-money
mortgage who forecloses it and bids in the premises acquires the title thereto
and may maintain an action of ejectment for their recovery.
De Garmo v. Phelps, 64 App. Div. 591, reversed.
(Argued October 26, 1903; decided November 24, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
October 28, 1901, affirming a judgment in favor of defend-
ants entered upon a dismissal of the complaint by the court at
a Trial Term without a jury.
The nature of the action and the facts, so far as material,
are stated in the opinion.
Charles F. Tabor for appellant. The conveyance to Ingle-
hart and eventually to this plaintiff was not within the inhibi-
tion of the statute which provides that " every grant of land
shall be absolutely void if at the time of the delivery thereof
such lands shall be in the actual possession of a person claim-
ing under a title adverse to that of the grantor." (1 R. S. 739,
§ 147; Hendricks v. Andrews, 7 Wend. 152; Livingston v.
P. L Co., 9 Wend. 512 ; Moody v. Moody, 16 Hun, 191 ;
Gary v. Goodman, 22 N. Y. 170 ; Fish v. Fish, 39 Barb.
512; Tyler v. Ileldon, 4G Barb. 439 ; Webb v. Bindon, 21
456 De Garmo v. Phelps. [Nov.,
Opinion of the Court, per Cdllen, J. [Vol. 176.
Wend. 99 ; Preston v. Hunt, 7 Wend. 53 ; Zink v. McManus,
121 K Y. 265.) The plaintiff obtained her title by the
decree and judgment of the Supreme Court, and the Cham-
perty Act does not prohibit the sale by judicial decree. (Hoyt
v. TJwmpson, 5 N. Y. 320 ; Truax v. Thorn, 2 Barb. 156 ;
Tuttle v. Jackson, 6 Wend. 224 ; Stevens v. Hauser, 39 N. Y.
306 ; Smith v. Scholtz, 68 N. Y. 53 ; Coleman v. M. B. I.
Co., 94 N. Y. 234; Sandiford v. Frost, 9 App. Div. 57;
& Toole v. Garvi?i, 1 Hun, 95; Ten Eyck v. Wiibeck, 55
App. Div. 165; 170 N. Y. 564.)
John F. Connor for respondents. The deed to Inglehart,
dated May 22, 1893, was void as against the defendant George
W. Phelps, as he was in actual possession of the premises,
claiming the same under title adverse to Inglehart and his
grantors. (L. 1896, ch. 547, § 225 ; Becker v. Howard, 66
N. Y. 5 ; Chard v. Holt, 136 N. Y. 30.) Assuming that the
deed given to Inglehart was valid because it was given in a
judicial proceeding, there can be no question but that the
mortgage given by him May 22, 1893, and through which the
plaintiff claims title, was void. (L. 1896, ch. 547, § 225 ;
Lowber v. Kelley, 17 Abb. Pr. 452 ; 6 Bosw. 492 ; Becker v.
Howard, 66 N. Y. 5 ; Chard v. Holt, 136 N. Y. 30.)
Cullen, J. The action is in ejectment for the recovery of
a piece of land in the village of Nunda, county of Livingston.
Under the findings of the trial court there is but a single
question presented to us on this appeal. The plaintiff traced
her title from one Robert Girven, concededly the owner and
in possession of the premises, who, on April 25th, 1889, mort-
gaged the property to one James H. Carmichael. The mort-
gage was subsequently assigned to Annie E. Volger, and
default having been made in its payment it was foreclosed by
action. At the sale made under the judgment in said action
the lands were sold and conveyed to Fred. M. Inglehart, who
on the same day executed to said Volger a mortgage to secure
$1,000 of the purchase money. Mrs. Volger subsequently
1903.] De Garmo v. Phelps. 457
N. Y. Rep.] Opinion of the Court, per Cullen, J.
assigned her mortgage to the plaintiff, who, default having
been made in its payment, brought an action to foreclose the
same. Under the judgment in that action Mrs. De Garmo, the
plaintiff therein, purchased the mortgaged lands. In October,
1892, intermediate the execution of the mortgage from Girven
to Carmichael and the sale under the judgment for the fore-
closure of said mortgage, the defendant entered into possession
of the premises, claiming title under deed executed by the
county treasurer of Livingston county for non-payment of
taxes, and has remained ever since in possession, claiming in
hostility to the plaintiff and her predecessors in title. The
trial court held that such adverse possession defeated the
plaintiff's title under the provisions of the statute (1 ft. S.
p. 739, sees. 147, 148 ; Real Property Law, chap. 547, Laws
of 1896, § 225), which provide that " every grant of lands
shall be absolutely void, if at the time of the delivery thereof,
such lands shall be in the actual possession of a person claim-
ing under a title adverse to that of the grantor. But every
person having a just title to lands, of which there shall be an
adverse possession, may execute a mortgage on such lands ;
and such mortgage, if duly recorded, shall bind the lands from
the time the possession thereof shall be recovered by the
mortgagor or his representatives."
That judicial sales do not fall within the condemnation of
these statutory provisions has been settled law from a very early
time in the history of this state. (Tuttle v. Jackson, 6 Wend.
213 ; Hoyt v. Thompson, 5 N. Y. 320 ; Steven* v. Hauser, 39
N". Y. 302 ; Coleman v. Manhattan Beach Impr. Co., 94 N. Y.
229.) Therefore, neither of the deeds made in pursuance of the
judgments of foreclosure and sale was void. The statute does
not assume to deal with assignments of mortgages, and in the
only case that I can find in which the question was presented
a similar statute was held inapplicable to such transfers. {Con-
verse v. Searls, 10 Vt. 578.) Inglehart, therefore, by his
purchase at the sale in the first foreclosure suit, acquired a
perfect title, and the only doubtful link in the plaintiff's chain
of title is the mortgage which Inglehart gave back to the
458 De Garmo v. Phelps. [Nov.,
Opinion of the Court, per Cdllen, J. [Vol. 176.
plaintiff in the foreclosure suit to secure part of the purchase
money. I concede that, though* Inglehart's title was perfect,
the statute rendered any voluntary conveyance by him, while
the lands were in adverse possession by another party, void ;
and while the statute authorized him to mortgage his lands,
I assume that the effect of the provision that the mortgage
shall bind the lands from the time the possession thereof is
recovered by the mortgagor is to exclude such operation until
possession is so recovered, which in this case never occurred.
Hence, if the mortgage from Inglehart to Mrs. Volger, under
the foreclosure of which the present plaintiff claims, had
been given for any other purpose than to secure the pur-
chase money, I am inclined to the view that the plain-
tiff's title would fail. But there is a marked distinction
between a purchase-money mortgage and any other. In the
case of such a mortgage dower does not attach ajs against
the mortgage, nor do existing judgments or claims against
the mortgagor obtain priority over it. This is the rule in
this state by statute ; but the statute is only declaratory of
the rule of law existing before it was enacted (Mills v. Van
Voorhie8, 20 N. Y. 412), and the same rule obtains in states
where there are no statutes on the subject. (1 Jones on Mort-
gages, § 468.) Now, the ground on which this rule rests is
not the superior equity of the holder of a lien for the pur-
chase money, but the theory that the conveyance and mort-
gage, whether the latter be to the grantor or to a third party,
are but separate parts of a single entire contract. In IIol-
hrook v. Finney (4 Mass. 566) a wife was held not entitled to
dower in lands conveyed to her husband by his father and
simultaneously mortgaged by the son to the father. It was
there said : " In the case at bar the execution of the two
deeds, they being of even date, was done at the same instant
and constitutes but one act." This dictum was quoted with
approval by Chief Justice Spencer in Stow v. Tifft (15
Johns. 458), saying: "Where a deed is given by the vendor
of an estate, who takes back a mortgage to secure the pur-
chase money, at the same time that he executes the deed, the
1903.] De Garmo v. Phelps. 459
N. Y. Rep.] Dissenting opinion, per Gray, J.
deed and the mortgage are to be considered as parts of the
same contract, as taking effect at the same instant, and as con-
stituting but one act." In Clark v. Munroe (14 Mass. 351)
the doctrine of Jlolbrook v. Finney was applied in favor of a
third party who advanced a portion of the purchase money,
to secure which he received a mortgage. " A deed and pur-
chase-money mortgage, given at the same time, are to be con-
strued together as forming one instrument or contract."
(Raw8on v. Lampmam,, 5 N. Y. 456.) In Curtis v. Root (20
111. 53) Chief Judge Caton said : " The execution of the deed
and of the mortgage being simultaneous acts, the title to the land
does not for a single moment rest in the purchaser, but merely
passes through his hands and vests in the mortgagee without
stopping at all in the purchaser, and during such instantaneous
passage the judgment lien cannot attach to the title. This is
the reason assigned by the books, why the mortgage takes
precedence of the judgment rather than any supposed equity
which the vendor might be supposed to have for the purchase
money." In that case the mortgagee was not the grantor, but
a third party. If the doctrine of these cases be sound, it
seems to me that Mrs. Volger, to the extent of her mortgage
interest, whether it be considered a lien or a conditional estate,
was just as much a purchaser at the judicial sale had under
the decree as was Inglehart, the mortgagor, and that she
acquired her title from the court, not from Inglehart, but
merely through Inglehart as a conduit. It was her money
that went to satisfy the decree and she was the plaintiff in
the foreclosure suit, and, if necessary, it might be well held
that the new mortgage was a mere extension pro tanto of
the old mortgage under foreclosure. The mortgage to her,
therefore, did not fall within the statute.
The judgment appealed from should be reversed and a new
trial granted, costs to abide the event.
Gray, J. (dissenting). I think that the judgment below is
right and that it should be affirmed by us. The effect of the
unanimous affirmance is to establish conclusively, upon this
460 De Garmo v. Phelps. [Nov.,
Dissenting opinion, per Gray, J. [Vol. 176.
review, the fact that, prior to and at the time of Inglehart's
purchase at the judicial sale, the defendant Phelps was in
actnal possession of the land and that he was claiming it
under a title adverse to that of Inglehart, or of his predecessor
in title. The validity of the county treasurer's deed, through
which he claims, is not an issue to be tried. Whether a party,
who claims by right of adverse possession, has a rightful title
is not an essential fact. • That fact is not the issue in such an
action, where the defense is that the plaintiffs title rests upon
a champertous conveyance. The very object of the statute,
which was founded on a common-law principle, was to pre-
vent a party out of possession from transferring his right to
litigate for the recovery of possession. {Sands v. Hughes, 53
N. Y. 295, 297.) Under the statute, an adverse possession
of a single day, whether known, or unknown, to the grantor,
had been held to avoid the conveyance. (Ovary y. Goodman,
22 N. Y. 170.) Indeed, so strict was the application of the
law, that the purchaser of land in the possession of a third
party, only, escaped a penalty, imposed in the early legislation
of this state, upon establishing that he had no knowledge of
the fact. (Teele v. Fonda, 7 John. 251 ; Preston v. Hunt, 7
Wend. 53.)
If the inhibition of the statute applies to plaintiff's case,
then it is only necessary that the defendant should have had
color of title, with an actual possession. The Revised Stat-
utes, in force at the time of Inglehart's transaction, provided
that " Every grant of lands shall be absolutely void, if, at the
time of the delivery thereof, such lands shall be in the actual
possession of a person claiming under a title adverse to that
of the grantor " and that " every person having a just title
to lands, of which there shall be an adverse possession, may
execute a mortgage on such lands ; and such mortgage, if duly
recorded, shall bind the lands from the time the possession
thereof shall be recovered, by the mortgagor or his representa-
tives." (1 R. S. 739, §§ 147, 148.) The present Real Prop-
erty Law preserves a similar provision. (Laws of 1896, ch.
547, § 225.) The conveyance to Inglehart by the judicial
1903.] I)k Uarmo v. Phelps. 461
N. Y. Rep.] Dissenting opinion, per Gray, J.
officer, upon his purchase at the judicial sale, was not within
the inhibition of the statute ; because, being a judicial sale,
the statute could have no application and this was always so
held. (See 4 Kent's Com. 447 ; Coke's Litt. 214a ; Tuttle v.
Jackson, 6 Wend. 224; Truax v. Thorn, 2 Barb, 156;
Stevens v. Hauser, 39 N . Y. 302 ; Coleman v. Manhattan
Beach Impr. Co., 94 ib. 229.)
While, therefore, the deed to Inglehart was not within the
purview of the statute, the mortgage, which he executed to a
third person, in order to procure a portion of the purchase
money which he was to pay, came, clearly, within the statutory
inhibition, and that was the position taken by the respondent,
Phelps, upon his motion to dismiss the complaint at the close
of plaintiffs case. The mortgage by Inglehart was a grant of
land, then in Phelps' actual possession, to secure the perform-
ance of the promise to pay a sum of money. A mortgage is
a deed with a condition, (90 N. Y. 618), and it is evident
that the legislature thus regarded a mortgage; for, in the
statute, it was made the subject of an exception and allowed
effect, but only upon the mortgagor's recovering the posses-
sion of the land. It makes no difference that this mortgage
is regarded as a purchase-money mortgage ; which, upon an
equitable doctrine, is given a certain priority of lien. It was,
nevertheless, a grant of land with a defeasance clause, made
at a time when the land affected was in the actual possession
of one, who held adversely under color of title. The statute
is imperative in its declaration as to the invalidity of such grants
and the exception in favor of mortgages, only, makes them
binding upon the land, when its possession is recovered by
the mortgagor, or his representatives. That was Inglehart's
position ; such was that of his mortgagee and, of course, such
is that of the plaintiff ; who foreclosed the mortgage and pur-
chased at the sale. If Inglehart had simply deeded the land
purchased, no doubt could arise as to its being void and may
we hold that a mortgage, given to a third person to pro-
* cure a portion of the money payable upon the mortgagor's
purchase of the premises, is excepted ? That the statute was
462 People ex kel. Kyan v. Wells [Nov.,
Statement of case. [Vol. 176.
not aimed at judicial sales is evident enough ; for it would
only be a transaction between private persons that could
involve the sale and purchase of a pretended title and a trans-
fer of a right to sue for the recovery of land. It was not
any judicial legislation, by which purchasers at judicial sales
were excepted from the operation of the statute; it was
because the facts would not permit of it. But it is judicial
legislation for the court to hold, in the face of the statutory
provisions, that a purchase-money mortgage, made to a third
person, was excepted.
In my opinion, Inglehart's mortgagee obtained no title, nor
interest, in or to, nor lien upon, the land then held by
Phelps in actual adverse possession and, consequently, the
foreclosure proceedings, through which this plaintiff became
a purchaser thereof and to which Phelps was a 6tranger, were
without effect upon his interests.
Parker, Ch. J., O'Brien and Martin, JJ., concur with
Cullen, J. ; Werner, J., concurs with Gray, J. ; Haight, J.,
not voting.
Judgment reversed, etc.
The People of the State of New York ex rel. Michael
Ryan, Respondent, v. James L. Wells et al., Composing
the Board of Taxes and Assessments of the City of New
York, Appellants.
New York (City of)— Deputy Tax Commissioner— Office of,
Excepted from Provisions of Section 21 of Civil Service Law
Prohibiting Removal of Honorably Discharged Volunteer Fire-
men Therefrom, Except After Hearing on Stated Charges. The
office of deputy tax commissioner of the city of New York is an office
excepted, by the language thereof, from the provisions of the Civil Service
Law (L. 1899, ch. 870, § 21, as amd. by L. 1902, ch. 270) prohibiting the
removal of an honorably discharged soldier or volunteer fireman from any
position, by appointment or employment, in the state or any of the cities
thereof, except for incompetency or misconduct after a hearing upon
stated charges, and, therefore, an honorably discharged volunteer fire-
man who has been removed by the board of tax commissioners without a
trial, having been first given an opportunity of making an explanation,
1903.] " People ex rel. Ryan v. Wells. 463
N. Y. Rep.] Opinion Per Curiam.
under the provisions of section 1543 of the charter, is not entitled to a
hearing upon stated charges, and a writ of certiorari to review his
removal will not lie.
People ex rel. Ryan v. Wells, 86 App. Div. 270, reversed.
(Argued November 9, 1903; decided November 24, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the second judicial department, entered
September 18, 1903, which annulled, on certiorari, a deter-
mination of the defendants removing the relator from the
position of deputy tax commissioner of the city of New
York.
The facts, so far as material, are stated in the opinion.
George L. Hives, Corporation Counsel (James McKeen
and Walter S. Brewster of counsel), for appellants. The pro-
visions of the statute under which the position of a deputy
tax commissioner is created show that these deputies are
within the exception in the Civil Service Law. (L. 1901, ch.
466, § 887 ; Blust v. Collier, 62 App. Div. 478 ; People ex
rel. v. Van Wyck, 157 N. Y. 495.) Unless the relator was
entitled to the special privileges given by section 21 of the
Civil Service Law it cannot be questioned that the removal
was made in accordance with the provisions of section 1543
of the charter. (People ex rel. v. Brady, 166 N. Y. 44.)
Bobert II. Elder for respondent. The proceedings of
removal are reviewable by certiorari because the statute
expressly allows this remedy in cases of veterans and because
they were judicial in their nature. (People v. Brady, 166
N. Y. 44 ; People v. Scannell, 62 App. Div. 253 ; People v.
Gleason, 63 App. Div. 436 ; People v. Flood, 64 App. Div
211.)
Per Curiam. The relator was a deputy tax commissioner
of the city of New York and a veteran volunteer fireman. It
cannot be doubted that under the provisions of section 1543
of the Greater New York charter he might Jiave been
46-1 People ex rel. Ryan v. Wells. [Nov.,
Opinion Pier Curiam. [Vol. 176.
removed by the board of tax commissioners without a trial,
having been first given an opportunity of making an explana-
tion, unless his case is taken without that section by section
21 of the Civil Service Law (Chap. 370, Laws 1899, as
amended by Chap. 270, Laws of 1902). The last statute
provides that an honorably discharged soldier or volunteer
fireman holding any position by appointment or employ-
ment in the state or any of the cities thereof shall not be
removed from such position or employment except for incompe-
tency or misconduct after a hearing upon stated charges. As
originally enacted it, however, contained this qualification:
" Nothing in this section shall be construed to apply to the
positions of private secretary or deputy of any official or
department, or to any other person holding a strictly confiden-
tial relation to the appointing officer." As amended in 1902
the qualification reads : " Nothing in this section shall be con-
strued to apply to the position of private secretary, cashier or
deputy of any official or department." The office of the
relator is declared by the charter to be that of deputy ta*
commissioner which would bring him within the language of
the exception or qualification in the civil service statute. The
learned court below, however, was of opinion that because
the statute as originally enacted contained the language " or
to any other person holding a strictly confidential relation to
the appointing officer," only such deputies were to be excepted
from the provisions of the section as bore confidential rela-
tions to the appointing officers. It was further of opinion
that the relation of deputy tax commissioner to the board of
commissioners was not confidential and that, therefore, the
relator could be removed only upon charges. We are by no
means clear that the language of the civil service statute in
its original form justified such a qualification or limitation of
the term " deputy." However that may be, since the amend-
ment of 1902, by which the provision as to " any other per-
son holding a strictly confidential relation to the appointing
officer " has been stricken out and the position of cashier,
which is not necessarily confidential {People ex rel. Tate v.
1903.] People ex rel. Clark v. Keeper, etc. 465
N. Y. Rep.] Statement of case.
Dalton, 41 App. Div. 458 ; affirmed on opinion below, 160
N. Y. 686), added to the exceptions, such an interpretation we
think no longer admissible and that the statute excepts all
deputies in the various city departments. As the relator was
not entitled to a hearing on charges, certiorari to review his
removal would not lie. (People ex rel. Kennedy v. Brady,
166 N. Y. 44.) It follows that the order of the Appellate
Division should be reversed and the proceeding dismissed,
with costs.
Parker, Ch. J., O'Brien, Bartlett, IIaioht, Vann, Cul-
len and Werner, J J., concur.
Order reversed, etc.
The People of the State of New York ex rel. May Clark,
Respondent, v. The Keeper of the New York State
Reformatory for Women at Bedford et al., Appellants.
The State Charities Law — Jurisdiction of New York City
Magistrate to Sentence Women to State Reformatory at Bed-
ford under Section 146 Thereof — Conviction Must Be for
Offenses Enumerated Therein. Under section 146 of the State Chari-
ties Law (L. 1896, ch. 546, as amd. by L. 1899, ch. 632), providing that
•'A female, between the ages of fifteen and thirty years, convicted by any
magistrate of petit larceny, habitual drunkenness, of being a common
prostitute, of frequenting disorderly houses or houses of prostitution, or
of a misdemeanor, and who is not insane, nor mentally or physically inca-
pable of being substantially benefited by the discipline of either of such
institutions, may be sentenced and committed to * * * the New York
State Reformatory for Women at Bedford," a magistrate of the city of
New York has no jurisdiction to sentence a woman to such reformatory
unless she is convicted of one or more of the offenses enumerated therein;-
and a conviction thereunder is improper where it is impossible to deter-
mine, from the records and papers relating to the conviction and sentence
returned upon writs of habeas corpus and certiorari allowed in her
behalf, whether she was convicted of being a prostitute, either "public"
or "common," assuming these terms to be practically synonymous, or
on the charge of "disorderly conduct;" but, assuming that it is reason-
ably certain that the magistrate intended to convict the relator of " dis-
orderly conduct," then the conviction is not a valid conviction for a mis-
30
466 People ex rel. Clark v. Keeper, etc. [Nov.,
Points of counsel. [Vol 176.
demeanor, and, therefore, within the purview of the State Charities Law,
unless the offense complained of constitutes a misdemeanor as defined by
law; and where the record fails to show that the disorderly conduct com-
plained of comes within the meaning of section 1458 of the Consolidation
Act, which seems to have been incorporated into the Greater New York
charter, or that of section 675 of the Penal Code, relating to the offense
of disorderly conduct, so that it constitutes the offense of "disorderly
conduct," as therein defined, and, therefore, is a misdemeanor, the relator
is properly discharged from custody.
People ex rel. Clark v. Keeper, etc., 80 App. Div. 448, affirmed.
(Argued June 19, 1903; decided November 24, 1908.)
Appeal from an order of the Appellate Division of the
Supreme Court in the second judicial department, entered
March 6, 1903, which affirmed an order of Special Term sus-
taining writs of habeas corpus and certiorari and discharging
the relator from custody.
The facts, so far as material, are stated in the opinion.
William Travers Jerome, District Attorney {Robert C.
Taylor and Henry G. Gray of counsel), and John Cunneen,
Attorney-General, for appellants. The commitment was
authorized by section 146 of the State Charities Law. (L.
1896, ch. 546; L. 1899, ch. 632; People ex rel. v. Coon, 67
Hun, 523 ; 51 N. Y. S. R. 339 ; People v. Cowie, 88 Hun,
498 ; People ex rel. v. Superintendent, etc., 33 Misc. Rep.
245.) The city magistrate had jurisdiction in this proceed-
ing. {People ex rel. v. Coon, 67 Hun, 523 ; People v. Cowie,
88 Hun, 498; Matter of Ilellman, 174 N. Y. 254; People
v. Adelphi Club, 149 N. Y. 5 ; U. S. v. Graham, 110 U. S.
219 ; U. S. v. Finnell, 185 U. S. 236 ; People ex rel. v. N. Y.
Cath. Protectory, 101 N. Y. 195 ; People ex rel. v. P. E
House of Mercy, 128 N. Y. 180; People ex rel. v. P. E.
House of Mercy, 133 N. Y. 207 ; Matter of Knowach, 158
N. Y. 487.)
Amos II. Evans for respondent. If the relator was oon-
victed of disorderly conduct the judgment of conviction was
1903.] People ex rel. Clark v. Keeper, etc. 467
N. Y. Rep.] Opinion of the Court, per Werner, J.
void, because of the magistrate being without jurisdiction,
there being no such offense known to the law of the state of
New York. (L. 1882, ch. 410, § 1458; Penal Code, § 675 ;
People ex rel. v. Reformatory, 38 Misc. Rep. 233 ; L. 1895,
ch. 601, § 14; L. 1901, ch. 466, § 1409.) The committing
magistrate had no power to commit the relator to the state
reformatory for the period of three years. {People ex rel. v.
Reformatory, 38 Misc. Rep. 233 ; L. 1896, ch. 546, § 146 ;
L. 1899, ch. 632.)
Werner, J. On the 31st day of May, 1902, the relator
was sentenced by a New York city magistrate to the State
Reformatory at Bedford, N. Y., under the authority of sec-
tion 146 of the State Charities Law (Chap. 26, Gen. Laws),
which provides, in substance, that a female between the ages
of fifteen and thirty years, who has been convicted by a magis-
trate of petit larceny, habitual drunkenness, of being a com-
mon prostitute, of frequenting disorderly houses or houses of
prostitution, or of a misdemeanor, and who is not insane nor
mentally or physically incapable of being benefited by disci-
plinary treatment, may be sentenced to the several reforma-
tory institutions for women therein mentioned.
The learned district attorney has favored us with a most
elaborate and instructive brief on the constitutionality of the
section of the State Charities Law above referred to, but as
that question is not distinctly raised by the respondent's coun-
sel, and as there are other obvious infirmities in the record
which require the affirmance of the order discharging the rela-
tor, we shall not now discuss or decide the constitutional ques-
tion, for that may be of sufficient gravity and importance to
merit the most serious consideration when presented by a rec-
ord that is not so fatally defective as the one before us.
The complaint made by the officer who arrested the relator
charges her with importuning and soliciting men for the pur-
pose of prostitution, and with having been repeatedly arrested
and convicted of the charge of disorderly conduct, in that she
was in the habit of soliciting and importuning men for the
468 People ex bel. Clark v. Keeper, etc. [Nov.,
Opinion of the Court, per Werner, J. [Vol. 176.
purpose of prostitution upon the street at all hours of the
night, and with being " a public prostitute."
The record of conviction recites that the relator was
brought before the magistrate and charged with " disorderly
conduct" in importuning and soliciting men upon the street
for the purpose of prostitution.
The warrant of commitment states that the relator was
charged with " being a public prostitute," and that she was
convicted upon that charge.
The magistrate's return to the -writs of habeas corpus and
certiorari issued herein sets forth that the relator was con-
victed " of such disorderly conduct charged in said complaint,
and as in my opinion tended to and might provoke a breach
of the public peace."
The relator demurred to this return, and, upon the issue
thus joined, the Supreme Court at Special Term sustained
the demurrer and the writs and discharged the relator from
custody. At the Appellate Division this order was affirmed.
There are several reasons why this decision should be
sustained.
To begin with, the magistrate had no jurisdiction to sen-
tence the relator to the reformatory at Bedford, because she
was not convicted of any of the offenses enumerated in the
statute which confers upon magistrates the power to sentence
convicted women to that institution. The relator was not
copvicted of petit larceny, habitual drunkenness, of being a
common prostitute, of frequenting disorderly houses or houses
of prostitution, and those are the only offenses specified by
name in section 146 of the State Charities Law. It is urged
that the terms " public prostitute " and " common prostitute "
are practically synonymous, so that a conviction under either
designation amounts to one and the same thing, but even if
that be conceded for the purposes of the argument, there still
remains the practical difficulty of determining whether the
relator was convicted of being a prostitute or for disorderly
conduct. In the complaint the substance of the charge is
that the relator was a " public prostitute," and her previous
1903.] People ex rel. Clark v. Keeper, etc. 469
N. Y. Rep.] Opinion of the Court, per Werner, J.
arrests and convictions for disorderly conduct are recited
apparently as matter aggravating the charge. In the record
of conviction the offense named is " disorderly conduct," and
the reference to the soliciting of men for immoral purposes
seems to be purely explanatory and incidental. The only
offense referred to in the warrant of commitment is that of
being a " public prostitute," but the magistrate's return to the
writs ignores that charge and" asseverates that the relator's
conviction was had on the charge of " disorderly conduct." So
palpable and confusing are these contradictions of the magis-
trate's record that it is impossible to say that any offense has
been charged and set forth with the convenient certainty which
the law requires. While it is not necessary that the offense
should be charged with the precision required in an indict-
ment, the record should show that the relator is charged with
some offense known to the law by some statutory or legal
definition (People ex rel. Allen v. Hagan, 170 N. Y. 52), and
this is particularly true in cases where an alleged offender
may, by a single act, lay himself liable to either one of several
charges.
We have referred to the offenses mentioned by name in sec-
tion 146 of the State Charities Law, upon conviction of either
of which a woman of the prescribed age and condition may
be sentenced to a state reformatory. To this category should
be added the general designation of " misdemeanor " which
appears at the end of the enumeration. We mention this
because it is argued for the appellant that if there is no such
offense as that of being " a public prostitute " the conviction
herein should be upheld on the ground that " disorderly con-
duct " is a misdemeanor which brings the relator within the
class of women who may be committed to state reformatories.
Upon this point it is enough to say that, even if it were reason-
ably certain that the magistrate intended to convict the relator
of "disorderly conduct," it would not necessarily follow that
the conviction would be valid, for the case would then turn
upon the question whether the charge of " disorderly con-
duct," as recited in the complaint, record of conviction and
470 People ex rel. Clark v. Keeper, etc. [Nov.,
Opinion of the Court, per Werner, J. [Vol. 176.
warrant of commitment, is one which, under other statutes, is
defined as an offense or a misdemeanor. In the abstract there
is no such offense as " disorderly conduct," but by section
1458 of the Consolidation Act, which seems to have been
incorporated into the charter of the Greater New York city,
" every person in said city and county shall be deemed guilty
of disorderly conduct that tends to a breach of the peace,
who shall in any thoroughfare or public place in said city
and county commit any of the following offenses, that is to
say: (2) Every common prostitute or night walker loitering or
being in any thoroughfare or public place for the purpose of
prostitution or solicitation, to the annoyance of the inhabitants
or passers by," and by section 675 of the Penal Code " any
person who shall, by any offensive or disorderly act or language,
annoy or interfere with any person or persons in any place
* * * shall be deemed guilty of a misdemeanor."
The most cursory comparison of the language of these
statutes, with the verbiage of the magistrate's record herein,
will disclose the essential insufficiency of the latter in the very
particulars which go to make up the statutory offense of dis-
orderly conduct. Taken as a whole, this record gave the
magistrate no jurisdiction to render the judgment which is
here the subject of inquiry. The writs of habeas corpus and
certiorari were, therefore, the proper remedy (People ex rel.
Tweed v. Ziscomb, 60 N. Y. 559 ; People ex rel. Van Riper
v. iT. Y. C. Protectory, 106 N. Y. 605), and we think the
case has been correctly disposed of by the courts below. We
quite agree with the learned district attorney that there is no
more important branch of our criminal jurisprudence than
that which relates to the reformatory treatment of offenders
who are not to be classed as criminals ; but since the jurisdic-
tion to administer such treatment is purely statutory, it is
equally clear that in its exercise the forms of law should be
observed, at least with reasonable approximation, for other-
wise the rights of such offenders would be subject to invasions
that will not be tolerated even in dealing with hardened
criminals.
1903.] People ex rel. Clark v. Keeper, etc. 471
N. Y. Rep.] Dissenting opinion, per Gray, J.
The errors of record in this case are not mere matters of
form but go to the very substance of right and, therefore, the
order herein must be affirmed.
Gray, J. (dissenting). Upon the appeal to this court, the rela-
tor, as respondent, in the first place, insists that the returns to the
writs show upon their face that " the proceedings before the com-
mitting magistrate were conducted in such a loose, careless and
indefinite manner that it is impossible to determine the nature of
the charge against her," or the basis of the magistrate's decision.
In the second place, she says there is " no offense known to
the law of the state as that of public prostitute." And, fur-
ther, she insists that the magistrate was without jurisdiction ;
that he had no power to commit her for the period of three
years and that the proceedings before him were void, because
of the failure to keep a written record of the evidence upon
whjch the judgment was based. Such was, also, her demurrer
to the returns to the writs, in substance.
The return of the magistrate is open to the charge that he
was slovenly in his records and careless in his proceedings ;
but, in my opinion, the proceedings exhibited in the return to
the writs were not fatally affected thereby and they disclose a
case of the valid exercise of jurisdiction over the person of the
relator. If it was made to appear to the Supreme Court, upon
the return to the writ, that the relator was held under a valid
commitment, it had the force of a final judgment of a competent
tribunal and it was the duty of the court to remand her. (Code
of Civil Procedure, sec. 2032 ; People ex rel. Kuhn v. P. E.
Howe of Mercy, 133 N. Y. 207.) The proceeding, upon the
return to a writ of habeas corpus, is instituted to determine
whether a person, detained in custody, was so detained under
legal authority, and is not for the purpose of reviewing the
determination of the subordinate tribunal. (People ex rel.
Dcmziger v. P. K Bouse of Mercy, 128 N. Y. 180.) Sec-
tion 146 of the State Charities Law, (Laws of 1896, chap.
546, as amended by chap. 632, Lawp of 1899), provides that
"A female, between the ages of fifteen and thirty years,
472 People ex rel. Clark v. Keeper, etc. [Nov.,
Dissenting opinion, per Gray, J. [Vol. 176.
convicted by any magistrate of petit larceny, habitual drunk-
enness, of being a common prostitute, of frequenting dis-
orderly houses or houses of prostitution, or of a misde-
meanor, and who is not insane, nor mentally or physically
incapable of being substantially benefited by the discipline
of either of such institutions, may be sentenced and com-
mitted to * * * the New York State Reformatory for
Women, at Bedford ; " the term of the commitment being
for a period of three years, or until discharged by the board
of managers. The complaint, upon which the relator was
arrested and brought before the magistrate, charged her with
being " a public prostitute," who was soliciting men for the
purposes of prostitution, at a certain time and place, and who
had been repeatedly arrested and convicted of the charge of
disorderly conduct in committing such acts upon the streets.
The complaint charged the offense defined by the statute and
gave jurisdiction, if it existed. The examination of the rela-
tor exhibits her confession of being guilty of the charge
which had been made against her. The warrant of commit-
ment of the magistrate recited the charge made; the pro-
ceedings had before him upon her arrest and trial ; the con-
viction upon the charge ; that she was " not insane, nor men-
tally or physically incapable of being substantially benefited
by the discipline " of the New York State Reformatory for
Women at Bedford, and that she was committed to that
institution " for the term of three years, unless sooner dis-
charged therefrom by the managers."
I think that there was sufficient before the court, upon the
returns to the writs, to demonstrate the jurisdiction of the
magistrate over the person of the relator and the subject-mat-
ter of the complaint, and that the commitment, in substance
and form, was correct and sufficient to show 6uch jurisdiction
and the legality of the proceedings. {People ex rel. Dan-
ziger v. P. E. House of Mercy, supra.) The loose statements
of the magistrate, that the conviction of the relator was for
disorderly conduct, cannot alter the facts, nor affect the valid-
ity of the relator's commitment ; unless the charge of being
1903.] People ex rel. Clabk v. Keeper, etc. 473
N. T. Rep.] Dissenting opinion, per Gray, J.
" a public prostitute " constitutes no offense under the law ; or
unless the committing magistrate was without power to try and
to commit the relator. No other question is raised by the
relator, upon this appeal, and no other question is to be con-
sidered. However advisable and right that, in such cases, the
committing magistrate should reduce and preserve all of the
evidence, in writing, (People v. Giles, 152 N. Y. 136) under
the present circumstances, it is not material error ; inasmuch
as the evidence given by the relator herself is returned, show-
ing that she confessed to being guilty of the charge made in
the complaint. The affidavit, upon which the writs issued,
contains no allegation that the judgment was unsupported by
evidence and the demurrer does not raise such a question ;
nor were the material facts, appearing in the return, contro-
verted. The questions, solely raised and to be considered in
this case, are, first, whether the omission to state, in the com-
plaint and commitment, in the words of the statute, that the
relator was " a common prostitute " was fatal to the validity
of the warrant, and, second, whether an offense was charged
upon which the committing magistrate had power to try and
to commit.
As to the first question, I entertain no doubt but that the
words, " a public prostitute," are the legal equivalents of " a
common prostitute." The word "public," in its common
acceptation and use, has all the significance of, and is syn-
onymous with, "common." A woman, who prostitutes her
person to the public use, prostitutes it to the common use.
While the precise language of a penal statute should be
employed, it is not, necessarily, substantial error when other
words happen to be used, which have the same accepted and
popular sense as those used in the statute. No different mean-
ing can be imported into the term " public prostitute " than
attaches to that of " common prostitute."
Was there an offense charged and did the committing magis-
trate have the power to commit, upon proof thereof ? I think
that to be " a common prostitute " was made a new offense by
this statute. It created a new offense, because it provided
474 People ex rel. Clark v. Keeper, etc. [Nov.,
Dissenting opinion, per Gray, J. [Vol. 176.
that, upon conviction of the female for committing the act
specified, she might be deprived of her liberty and might be
detained in the custody of one of certain state institutions for
a period of three years ; the sentence being indeterminate, in
the sense that she might be sooner discharged by the board of
managers. Prior thereto, under section 887 of the Code of
Criminal Procedure, a common prostitute was classified with
vagrants. In this statute the legislature has exercised its wide
police powers, undoubtedly, with the intent of promoting the
public health and morals, and this State Charities Law is a
scheme for the correction of an evil ; whose f urtlier aim is the
reformation of the offender. It was competent, to that end,
to make it an offense to be a public, or common, prostitute
and to provide that, where a female was convicted thereof, she
should be punished, not in a strictly penal sense, but through
a restraint of her person, by being delivered into the custody
of one of the reformatory institutions of the state, if she
appeared to be morally and physically capable of being bene-
fited by discipline, for a reasonable period of time. The ope-
ration of the act was, clearly, not intended to be so much
punitive, as preventive, in its aims. The offender was to be
withdrawn from the community and confined where she
would, not only, be unable to continue her vile conduct to the
detriment of the public morals and, possibly, of the public
health ; but where she might be, herself, reformed and made
a fit member of society. The proceeding for her commit-
ment, upon conviction of the offense, was not criminal in its
nature ; it was preventive and reformatory in the interests of
organized society. It is plain to my mind that, in the enact-
ment of these provisions of the State Charities Law, the legis-
lature has made that an offense against the law, which was not
such before, and that it has conferred upon "any magistrate,"
which includes, of course, a city magistrate, jurisdiction to
convict a female, charged with the offense, and, in a proper
case, having regard to her mental and physical conditions, to
commit her to one of the institutions mentioned, for the pre-
scribed period of three years, or until discharged by the board
1903.] De8hong v. City of New York. 475
N. Y. Rep.] Statement of case.
of managers. The earlier acts, of which this general law is
a codification and extension, expressly authorized " all justices
of the peace, police justices and other magistrates and courts "
to sentence and commit (Ch. 187, Laws of 1881 ; ch. 233, Laws
of 1890).
For these reasons I dissent and I think there should be a
reversal of the orders below.
Parker, Ch. J., IIaioht, Vann and Cullen, JJ., concur
with Werner, J. ; Gray, J., reads dissenting opinion ; Mar-
tin, J., absent.
Order affirmed.
Maurice W. Deshong, Appellant, v. The City of New
York, Respondent.
1. Municipal Corporation — Private Use op Public Streets—
Presumption Arising from Lapse op Time That User Is With Con-
sent of the Public Authorities May Be Dispelled by Proof.
Where a vault has existed UDder a sidewalk for more than twenty years
and no objection has been made, as between the owner and a third person,
it will be presumed that it was originally constructed with the assent of
the public authorities, and the same presumption will obtain as against a
municipality if there is no proof to overcome it. This presumption is
not that the owner or his grantors acquired any right to the use of the
street by prescription or without the consent of the proper authorities,
but that from such use it might be presumed that the proper consent was
given. It is, however, a presumption only which may be dispelled by
proof. It is not a presumption of a grant of the title or of a permanent
right in the street, as no power exists in the authorities to make such a
grant or to confer any such right. The title to the streets being in the
city as trustee for the public, no grant or permission can be legally given
which will interfere with their public use. The right of the public to
the use of the streets is absolute and paramount to any other. A presump-
tion of or even an actual consent by the authorities to their use for private
purposes is always subject and subordinate to the right of the public
whenever required for public purposes, and such a grant or right cannot
be presumed when it would have been unlawful.
2. New York City — Reconstruction of Vault under Sidewalk —
When Payment for Permit Involuntary. A payment made by an
abutting owner to municipal authorities for a permit to reconstruct a
vault under a sidewalk in the city of New York, enforced by threats of
476 Deshong v. City of New Yokk. [Nov.,
Statement of case. [Vol. 176.
arrest and by taking possession of his property, is, if such authorities had
no authority to exact it, not so far voluntary as to prevent him from
maintaining an action for its recovery.
8. When Reconstruction May Be Made Without Permit or Addi-
tional Compensation. Assuming that a proper permit had been pre-
viously granted him for the construction of the old vault, such owner has
the right to continue the new vault without an additional permit or fur-
ther compensation, subject, however, to the condition that its continu-
ance will not interfere with the street or impair its use by the public.
4. Collation of Statutes Relating to Use op Public Streets for
Vaults. Statutes relating to the use of public streets in the city of New
York collated and discussed, showing that from 1857 there has been con-
tinuous authority in the boards and officers mentioned therein to give per-
mits for building and repairing vaults, and that since 1859 such permits
and the applications therefor have been required to be in writing and to be
kept in the proper office.
5. When Presumption of Lawful User Is Dispelled by Proof —
Question of Fact. Where the plaintiff in such an action fails to prove
the requisite written permit for the construction of the old vault, but
relies upon the fact that it had been in existence since 1876, at least
twenty-one years prior to the commencement of the action, without
protest or interference from the city authorities, while a presumption is
created that a permit was given by them, where there is proof that records
of such permits were kept and that there was no record or index of any
such permit in the proper office, the presumption is dispelled, or at least
a question of fact arising upon conflicting evidence is presented, which if
found against the plaintiff will preclude his recovery.
Deshong v. City of New York, 74 App. Div. 234, affirmed.
(Argued October 21, 1903; decided November 24, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered July
24, 1902, affirming a judgment in favor of defendant entered
upon a dismissal of the complaint by the court at a Trial Term
without a jury.
The nature of the action and the facts, 60 far as material,
are 6tated in the opinion.
Charles G. Cronin and Thomas O^ CaXLagham,, Jr., for
appellant. Where it is undisputed that a vault has been
maintained and in constant actual use for upwards of forty
years, the law will presume that it was originally constructed
with the knowledge and assent of the public authorities.
1903.] Deshong v. City of New York. 477
N. Y. Rep.] Opinion of the Court, per Martin, J.
(People ex rel. Zeigler v. Collis, 17 App. Div. 442.) It is to
be presumed that if the old vaults were constructed without
authority, the public officers would have performed their duty
and would have prevented any encroachment on the public
street. Such a presumption obtains in favor of public officers.
(Babbage v. Powers, 130 N. Y. 281.) Long user, without
any objection by the city authorities, is presumptive evidence
of consent on their part, without regard to the city ordi-
nances. (Jorgensen v. Squires, 144 N. Y. 280.) It was not
incumbent upon the plaintiff to show that a permit for this
areaway or vault had ever been issued. (Babbage v. Powers,
130 N. Y. 292 ; Chicago City v. Bobbins, 2 Black, 418 ; Both
bins v. Chicago City, 4 Wall. 657 ; Jennings v. Van Schaick,
108 N. Y. 530.) The payment for the area covered by the
old vault was not voluntary, but was the result of coercion
and duress exercised by the city authorities, and wholly
unlawful. (Stenton v. Jerome, 54 N. Y. 480; Scholey v.
Mumford, 60 N. Y. 498 ; Peyser v. Mayor, etc., 70 N. Y.
501 ; Bruescher v. Portchester, 101 N. Y. 240 ; Redmond v.
Mayor, etc., 125 N. Y. 632 ; Tripler v. Mayor, etc., 125 N.
Y. 617; Freeman v. Grant, 132 N. Y. 28; Poth v. Mayor,
etc., 151 N. Y. 16; jE. Ins. Co. v. Mayor, etc., 153 N. Y.
331.)
George L. Bi/ves, Corporation Counsel (TJieodore Connoly
and W. B. Crowett of counsel), for respondent. The public
records fail to show that vault permits had ever been issued
for the space in question and rebut the presumption of an
ancient vault. (Hatt v. Kellogg, 16 Mich. 135 ; Owings v.
Speed, 5 Wheat. 420 ; Denning v. Boome, 6 Wend. 651 ;
Power v. Vil. of Athens, 99 N. Y. 592.) The payment
made under protest was for the plaintiff's convenience, and he
intended to immediately sue and recover it after finishing his
building. {Flower v. Lance, 59 N. Y. 603 ; N. S. Bank v.
Town of Woodbury, 173 K Y. 55.)
Martin, J. This controversy relates to the right of the
plaintiff to build and maintain a vault under the sidewalk in
478 Deshong v. City of New York. [Nov.,
Opinion of the Court, per Martin, J. [Vol. 176.
front of lots numbers 54 and 56 West Third street, in the city
of New York. In 1898 the buildings which had been pre-
viously erected thereon were torn down and a new building
was in process of construction. When the old buildings
were removed there was a vault under the sidewalk in front.
It had existed there from the year 1876, and from a time
between 1860 and 1870 there had been a 6inall one under the
sidewalk, used for storing coal, which was not connected with
the building. When the plaintiff commenced to rebuild the
vault by constructing new walls inside the old ones, and put-
ting in iron beams upon which the sidewalk was to rest, the
public authorities of the city refused to allow him to proceed
until he had procured a written permit. The commissioner
of highways, having charge of the streets including vaults
therein, decided that the plaintiff was required to procure a
permit for the erection of such vault and to pay the city
therefor the sum of nine hundred and fourteen dollars. This
he paid under protest and brought this action to recover the
amount. The defendant relied upon two defenses : Firsty
that there was no coercion or duress by the city in obtaining
such payment, and, therefore, it was voluntary ; and, 8econd>
that no permit was ever issued for the old vault, and, conse-
quently, the plaintiff had no right to build a new one without
a proper permit and paying the usual compensation therefor.
The first question is whether the payment sought to be
recovered was voluntary, or whether it was made under cir-
cumstances entitling the plaintiff to recover. The undisputed
proof was that while the new vault was being constructed a
deputy or inspector of the department of highways came to
the place, stated to the plaintiff that his men must stop work,
and declared that if they continued he would have the plaintiff
and all the men who were at work arrested. He then called two
men to guard the place and stationed a policeman there to
stop the work upon the ground that the plaintiff had no per-
mit and would not be allowed to proceed until one was
obtained. To avoid arrest and to retain possession of the
property so that the building and its appurtenances might be
1903.] Deshong v. City of New York. 479
N. Y. Rep.] Opinion of the Court, per Martin, J.
completed and occupied the plaintiff was required to pay the
sum of nine hundred and fourteen dollars, which he did under
protest. Payments coerced by duress or unlawful compulsion
may be recovered back. The coercion, however, must be
illegal, unjust or oppressive. One of the several and perhaps
most common instances of duress is by threats of actual
imprisonment unless the required act shall be performed.
While there may be a diversity of opinion in some of the
reported cases as to what circumstances are sufficient to con-
stitute such coercion as will enable a party paying under pro-
test to recover, still, under the facts in this case we think it is
quite apparent that the amount demanded of the plaintiff was
paid under such circumstances as would enable him to recover,
if neither the city nor its officers had authority to charge or
demand^ it. If the city made the charge and demanded its
payment without authority of law it was void, and the action
of its officers in enforcing it by threats of arrest and by taking
unlawful possession of the plaintiff's property was illegal and
payment by him was not so far voluntary as to prevent a
recovery in this action. (Briggs v. Boyd, 56 N. Y. 289 ;
Scholey v. Mumford, 60 N. Y. 498 ; Newman v. Bd. Super-
visors Livingston Co., 45 N. Y. 676 ; Strushirgh v. Mayor,
etc., ofN. Y, 87 K Y. 452; Horn v. Town of New Lots,
83 N. Y. 100 ; Matter of Home P. S. F Assn., 129 N. Y.
288 ; Freeman v. Grant, 132 K Y. 22, 28 ; Talmage v. Third
Nat. Bk., 91 N. Y. 531, 536 ; Peyser v. Mayor, etc., of N.
Y., 70 N. Y. 497 ; ^Etna Ins. Co. v. Mayor, etc., of N. Y,
153 N. Y. 331.) Therefore, we are of the opinion that the
contention of the defendant that the judgment can be upheld
upon the ground that the payment by the plaintiff was volun-
tary, cannot be sustained.
It seems to have been assumed by both parties that if a
proper permit had been previously granted the plaintiff had a
right to continue his new vault in place of the old one with-
out an additional permit or further compensation. With this
assumption we are disposed to agree subject, however, to the
condition that its continuance would not interfere with the
480 Deshong v. City of New York. , [Nov.,
Opinio d of the Court, per Martin, J. [Vol. 176.
street or impair its use by the public. Whenever the existence
of a vault would interfere with the public use of the street,
the right to maintain it must be held to terminate, as the
rights of individuals under such permits must be regarded as
subordinate to the necessities or requirements of the public.
Before entering upon the discussion of the question whether
a permit had been issued for the old vaults, a brief history of
the statutes and ordinances relating to the subject seems
necessary to ascertain the powers of the city and the rights of
the plaintiff, so far as they are controlled by either.
So far as appears the first legislative permission for the use
of public streets in the city of New York for vaults was
given by chapter 446 of the Laws of 1857, which conferred
upon the Croton aqueduct board charge of issuing permits
for street vaults. (§ 24.) After the passage of that act it
was provided by the revised ordinances of 1859 that no per-
son should cause or procure any vault to be constructed or
made in any of the streets in the city without the permission
of the Croton aqueduct board, and that every application
for such permission should be in writing and signed by the
person making the same. In 1866 the same ordinances were
continued. The Croton aqueduct board had control of this
subject until the adoption of the charter of 1870. (L. 1870,
ch. 137.) The latter act gave the common council power to
make ordinances in relation to the construction, repairs and
use of vaults, conferred upon the department of public works
the power theretofore vested in the Croton aqueduct board
and provided that such department should have cognizance
and control of street vaults. (§ 21, subdiv. 20, §§ 77, 78.)
In 1873 (L. 1873, ch. 335) the common council was given
power to make, continue, modify and repeal such ordinances,
regulations and resolutions as might be necessary to carry into
effect all powers then vested in or by that act conferred upon
the corporation in relation to the construction, repairs and use
of vaults, and that act declared that the chief officer of the
department should be known as the commissioner of public
works, and should have cognizance and control of street vaults.
1903.] Deshoxo v. City of New Yojrk. 481
X. Y. Rep.] Opinion of the Court, per Martin, J.
(§ 17, subdiv. 18 ; § 70 ; § 71, subdiv. 8.) In 1880 the ordinances
of the city were again revised or compiled and provided that
the commissioner of public works on application was empow-
ered to give permission to construct any vaults or cisterns in
the streets, provided, in the opinion of the commissioner, no
injury would come to the public thereby. They forbade the
building or construction of any vault or cistern without the
written permission of the commissioner of public works, and
then declared that every application for such permission
should be in writing, signed by the person making the same,
stating the number of feet of ground required and the
intended length and width thereof. In 1882 the Consolida-
tion Act was enacted and conferred upon the common council
the power to make ordinances in relation to the construction,
repairs and use of vaults, etc., and provided that the department
of public works should have cognizance and control of street
vaults and openings in sidewalks. (§ 86, subdiv. 17; § 316,
6ubdiv. 8.) Then followed the charter of Greater New York
which provides that the municipal assembly shall have power
to make, establish, publish and modify, amend or repeal ordi-
nances, rules and regulations not inconsistent with that act or
the Constitution, in relation to the construction, repair and
use of vaults, and gives the commissioner of highways cogni-
zance and control of licensing vaults under sidewalks. (§ 49,
subdiv. 17 ; § 524, subdiv. 5.) The revised ordinances of
March, 1897, contained the same provisions in regard to vaults
as were contained in the ordinances of 1880.
Thus we find that from 1857 to the commencement of this
action there has been continuous authority in the boards and
officers mentioned to give permits for building and repairing
vaults, and since 1859 every application for such permission
has been required to be in writing and signed by the person
making the same. Hence, as the old vaults were not shown
to have been built before 1876, it is to be borne in mind that
these statutes and ordinances were adopted and in force
before the old vaults were constructed, and required a written
application and permit, which were to be kept in the proper
31
482 Deshong v. City of New York. [Nov.,
Opinion of the Court, per Martin, J. [Vol. 176.
office. Moreover, it does not appear that there was any offi-
cer of the city authorized to verbally consent to the erection
or maintenance of such vaults, and the statutes and ordinance*
requiring such application and permit to be in writing, l>y
implication at least, forbade such verbal consent or permission.
There is no claim that the plaintiff or any former owner of the
property had the right to build vaults under the sidewalk in
the street, without permission from the public authorities and
payment for the privilege. Nor is there any direct proof
that the permit required was ever granted for the construction
of any previous vault.
The single claim of the plaintiff is that there being evi-
dence that a vault or vaults had been in existence at that place
for at least twenty-one years, without protest or interference
from the city authorities, it is* to be presumed that a permit
had been obtained, and that the existence of the old vault was
lawful. To sustain this proposition, he relies upon the follow-
ing cases in this court : Jennings v. Van Schaick (108 N. Y.
530, 532) ; Babbage v. Powers (130 N. Y. 2Sl), and Jorgen-
sen v. Squires (144 N. Y. 280). In discussing a somewhat
similar question in the Jennings case, it was said : " It does
not appear that the defendant, who owned the premises, had
ever obtained from the municipal authorities any formal
license or permission to construct the opening in the sidewalk,
but such authority was a reasonable inference from an acqui-
escence of eighteen years without objection from the city."
In the Babbage case it was in effect held that while the public
is entitled to have a street remain in the condition in which it
was placed, and whoever, without special authority, materially
obstructs it or renders its use hazardous by doing anything
upon, above or below the surface, is guilty of a nuisance, yet,
when it appears that the act was done with the consent of the
proper officials, the rule of liability is relaxed, and that where
a vault had been constructed under the sidewalk, and used for
nine years, consent to its construction was to be inferred from
the acquiescence of the city officials having charge of the city
street and power to give 6ucli consent, and that in the absence
1903.] Deshong v. City of New York. 483
N. Y. Rep.] * Opinion of the Court, per Mahtin, J.
of a statute regulating the subject, a written consent was not
requisite. So in Jorgemen v. Squires, it was held that the
legislature might authorize a limited use of sidewalks for
cellar openings or vaults, and might delegate this power
to the municipal authorities, and that where such use had
continued for twenty years, without objection, it was pre-
sumptive evidence of consent upon their part, and in the
absence of affirmative proof of permission, it should be
implied, if there was nothing to disprove it. In People ex
rel. Ziegler v. Collis (17 App. Div. 448) the same doctrine
was held. It was there determined that where a vault had
been maintained under a sidewalk for thirty years and there
was no proof to the contrary, it would be presumed that it
was originally constructed with the assent of the public
authorities ; that where the commissioner of public works had
decided that a permit to open the street to repair the same
should be granted, he had no right to charge for the privilege,
and that the relator was entitled to a mandamus compelling
him to grant the permit without such payment.
Where a vault has existed under a sidewalk for more than
twenty years and no objection has been made, the doctrine of
these authorities seems to justify the conclusion that as
between the owner and a third person it will be presumed
that it was originally constructed with the assent of the public
authorities, and that the same presumption will obtain as
against the city if there is no proof to overcome it. This
presumption is not that the plaintiff or his grantors acquired
any right to the use of the street by prescription or without
the consent of the proper authorities, but that from such use
it might be presumed that the proper consent was given. It
is, however, a presumption only which may be dispelled by
proof. It is not a presumption of a grant of the title or of a
permanent right in the street, as no power exists in the
authorities to make such a grant or to confer any such right.
The title to the streets being in the city as trustee for the pub-
lic, no grant or permission can be legally given which will inter-
fere with their public use. The right of the public to the use
484 Deshong v. City of New York. [Xow,
Opinion of I be Court, per Martin, J.* [Vol. 176.
of the streets is absolute and paramount to any other. A pre-
sumption of consent or even an actual consent by the authori-
ties to their use for private purposes is always subject and
subordinate to the right of the public whenever required for
public purposes, and such a grant or right cannot be presumed
when it would have been unlawful. {Donahue v. State of
N. Y.j 112 K. Y. 142.) Moreover, in the cases in this court
which are cited, the question arose not between the owner of
the adjacent premises and the municipality, but between
the owner and a third person, where tlw latter claimed to
recover for personal injuries caused by the negligent or
wrongful act of the former. It 6eems quite evident that
the principle which is applicable in such a case is not neces-
sarily controlling or even applicable where the question is
between the owner and the city and the former claims a right
to the use of the street for which no permit has been given.
In other words, there can be no rightful, permanent possession
of any part of a public street for private purposes, unless by
virtue of an authorized permission of the city, and no length
of time will render legal a private interference with a street
which is a nuisance, or give the person maintaining it any
right to continue it as against the municipality. If, however,
we assume that proof that the original vault had been used
more than twenty years created a presumption, even against
the city, that it was originally constructed with the assent of
the public authorities, we are still required to consider and
give effect to the evidence tending to show that no such con-
sent was given. The evidence disclosed that there was an
office in which records of all such applications and permits
were filed and indexed as required by the statutes and ordi-
nances of the city, and that a diligent examination was made
of such records fiom a time anterior to the erection of the old
vault and that no permit for building it had been granted or
existed. The right to grant such permit was conferred by the
legislature in 1857, and that act and the subsequent statutes
and ordinances enacted in pursuance thereof require that the
application and permit should be in writing, and, therefore, if
1903.] Deshong v. City of New York. 485
N. Y. Rep.] Opinion of the Court, per Martin, J.
any such permit had been granted, the presumption is that it
would have been entered or filed in the proper office. (Law-
son's Presumptive Evidence, 67; Leland v. Cameron, 31 N.
Y. 115 ; People v. Snyder, 41 N. Y. 397.) The law presumes
that all officers intrusted with the custody of public files and
records will perform their official duty by keeping the same
safely in their offices, and if a paper is not found where, if in
existence, it ought to be deposited or recorded, the presump-
tion thereupon arises that no such document has ever been in
existence, and until this presumption is rebutted it must stand
as proof of such non-existence. (Hall v. Kellogg, 16 Mich.
135 ; Lawson's Presumptive Evidence, 75 ; Buck v. Barker,
5 X. Y. St. Repr. 826; Brown, v. Torrey, 10 J. & S. 1, 4;
Code of Civil Procedure, §§ 921, 961.)
Therefore, as neither the plaintiff nor his grantor could
acquire any title or interest in the street except in the manner
provided by the statutes and ordinances passed in pursuance
thereof, it seems quite clear that when the defendant proved
that such records were kept and that there was no record or
index of any such permit in the proper office, it dispelled the
presumption of such consent arising from the previous acqui-
escence of the officials having the matter in charge, or at least
presented a question of fact upon which the evidence was con-
flicting and which has been conclusively settled by the decisions
of the courts below. If these conclusions are correct, it follows
that there was no sufficient evidence that a consent to build
the old vault had ever been obtained, and, consequently, the
plaintiff was required to procure a permit and pay the usual
compensation before he could legally construct such new
vault.
The judgment should be affirmed, with costs.
Parker, Ch. J., IIaioht, Cullen, Werner, JJ. (and Gjray,
J., in result), concur; Yann, J., dissents.
Judgment affirmed.
486 Matter of Delano. [Nov.,
Statement of case. [Vol. 176.
In the Matter of the Appraisal, under the Transfer Tax Act,
of the Estate of Laura Astor Delano, Deceased.
The Comptroller of the State of New York, Appellant ;
Arthur Astor Carey, Respondent.
1. Tax — Section 280 of Tax Law, Imposing Transfer Tax upon
the Exercise of a Power of Appointment, Constitutional. Sub-
division 5 of section 220 of the Tax Law (L. 1896, ch. 908, amd. L. 1897,
ch. 284), imposing a tax upon the transfer of any property, real or per-
sonal, not only by will or intestate law, but also " whenever any person
or corporation shall exercise a power of appointment derived from any
disposition of property made either before or after the passage of this
act, such appointment when made shall be deemed a transfer taxable
under the provisions of this act in the same manner as though the prop-
erty to which such appointment relates belonged absolutely to the donee
of such power, and had been bequeathed or devised by such donee by
will, * * * " is an exercise of legislative power not prohibited by the
State or Federal Constitution. A transfer tax is, therefore, properly
imposed upon the exercise, by a last will and testament, of a power of
appointment derived from a deed executed before the passage of any
statute imposing a tax upon the right of succession to the property of a
decedent.
i
2. Construction of Statute. The statute applies to all powers of
appointment alike, without distinction on account of the method of crea-
tion or date of creation. No tax is laid upon the powers, or on the prop-
erty or on the original disposition by deed, but simply upon the exercise
of the power by will as an effective transfer for the purposes of the act;
and since the legislature has full and complete control of the making, the
form and the substance of wills, it can impose a charge or tax for doing
anything by will. The fact that there was no statute imposing a suc-
cession tax when the power was created is immaterial. That transfer is
not taxed; it is the practical transfer, through the exercise of the power
by will that is taxed, and nothing else.
Matter of Delano, 82 App. Div. 147, reversed.
(Argued November 10, 1903; decided November 24, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered April
17, 1903, which reversed an order of the New York County
Surrogate's Court denying a motion to dismiss a transfer tax
1903.] Matter of Delano. * 487
N. Y. Rep.] Points of counsel.
proceeding as to certain property appointed to the respondent
herein and dismissed said proceeding.
The facts, so far as material, are stated in the opinion.
George M. Judd and Edward IT. Fallows for appellant.
The taxation of a transfer of property, passing under and by
virtue of the exercise of a. power of appointment, under the
provisions contained in subdivision 5 of section 220 of the
Tax Law (L. 1896, ch. 908), as added by chapter 284 of the
Laws of 1897, has been sustained by this court. {Matter of
Vanderbilt, 163 N. Y. 597 ; 50 App. Div. 246 ; Matter of
Dows, 167 X. Y. 227.) A transfer tax imposed upon the
transfer of property passing under the exercise of a power of
appointment under the provisions contained in said subdi-
vision 5 of section 220 of the Tax Law is not a tax upon
property, but a tax upon the right of succession. {Matter
of Dows, 167 N. Y. 227.) The Surrogate's Court of New
York county has, for the purposes of the imposition of a
transfer tax, jurisdiction over the transfer of the property
that Laura Astor Delano by and in her last will and testament
appointed to Arthur Astor Carey. {Matter of Ullman, 137
K Y. 406 ; Weston v. Goodrich, 86 Hun, 194 ; Matter of
Wolfe, 137 X. Y. 205 ; Matter of Fitch, 39 App. Div.
609; Amherst College v. Ritch, 151 K Y. 282.) The
property over which Laura Astor Delano by her last will
and testament exercised the power of appointment granted
her under the certain deeds of 1848 and 1849 is sub-
ject to the provisions contained in subdivision 5 of section 220
of the Tax Law. {Matter of Seaver, 63 App. Div. 283 ;
Matter of Walworth, 66 App. Div. 171 ; Matter of Potter,
51 App. Div. 212; Matter of Rogers, 71 App. Div. 461.)
The contention that the power of appointment granted to
Laura Astor Delano having been created by instruments exe-
cuted prior to the enactment of a Succession Tax Law, any
property passing under the execution of said power of appoint-
ment is not taxable under the provisions contained in said sub-
division 5 of section 220 of the Tax Law, cannot be sustained.
488 * Matter of Delano. [Xov.,
Points of counsel. [Vol. 176.
{Matter of YanderbiU, 163 N. Y. 597; Matter of Dows, 167
JST. Y. 227 ; Matter of Potter, 51 App. Div. 212 ; Matter of
Seaver, 63 App. Div. 283 ; Matter of Rogers, 71 App. Div. 461.)
The contention that for the purpose of the imposition of a
transfer tax and within the meaning of said subdivision 5 of
section 220 of the Tax Law, the property over which Laura
Astor Delano by will exercised the power of appointment in
favor of Arthur Astor Carey was transferred to Arthur Astor
Carey not by and under the will of Laura Astor Delano, but
by the certain deeds of 1848 and 1849, is" not sound nor tena-
ble. {Matter of Seaver, 63 App. Div. 283 ; Matter of Dows,
167 X. Y. 227.) The contention that the power of appoint-
ment exercised by Laura Astor Delano, having been created
by the certain deeds of 1848 and 1849, any property passing
under the exercise of said power of appointment by and under
the will of Laura Astor Delano is not taxable under said sub-
division 5 of soction 220 of the Tax Law, cannot be sustained.
{Matter of Dows, 167 N. Y. 227.) Any rights whatsoever
which may have vested in Arthur Astor Carey by and under
the certain deeds of 1848 and 1849 are inferior to the taxing
rights of the state over the transfer of the property appointed
by the will of Laura Astor Delano in favor of Arthur Astor
Carey. {Matter of Vanderbilt, 50 App. Div. 246 ; Matter
of Dows, 167 N. Y. 227 ; Orr v. Oilman, 183 U. S. 278.)
Lucius II. Beers for respondent. The legislature either
did not intend to make the Transfer Tax Law retroactive, or,
where that intention has been apparent, provisions to that
effect are unconstitutional. {Matter of Seaman, 147 N. Y.
69; Matter of Pell, 171 X. Y. 48 ; Matter of Vanderbilt, 50
App. Div. 246.) The amendment of 1897 does not apply to
powers created by instruments which went into effect prior
to the passage of the act. {Matter of Seaman, 147 X. Y. 69.)
The amendment of 1897 does not apply to cases where the
power to appoint was created by a deed, unless the deed was
one made in contemplation of the death of the grantor.
{PeopU e;c rel. v. McClave, 99 X. Y. 83.) The Surrogate's
1903.] Matter of Delano. 489
N. Y. Rep.] Opinion of the Court, per Vann, J.
Court lias no jurisdiction to assess a tax upon the property
originally transferred by the deeds of 1848 and 1849. {Mat-
ter of Sinith, 40 App. Div. 481; Matter of Enston, 113 X.
Y. 174; Matter of Vassar, 127 X. Y. 1 ; Matter of Stewart,
131 X. Y. 274, 282; Matter of Swift, 137 X. Y. 77, SG;
Matter of Fayerweatlter, 143 X. Y. 114; Matter of Crerar,
56 App. Div. 479; Matter of Fitch, 160 X. Y. 87; Matter
of Embury, 19 App. Div. 214.) If the amendment of 1897
imposed a tax on the respondent's property, it impaired the
obligation of a contract made before the Tax Law was adopted,
and is, therefore, unconstitutional. {Root v. Stuyvesant, 18
Wend. 257; Matter of Pell, 171 X. Y. 48 ; Matter of Van-
derhilt, 172 X. Y. 69 ; 3 Pars, on Cont. [7th ed.] 481 ; Varick
v. Briggs, 22 Wend. 543 ; Van Rensselaer v. Ball, 19 X. Y.
100 ; People ex rel. v. Common Council, 140 X. Y. 300 ;
Fletcher v. Peck, 6 Cranch, 87 ; Murray v. Charleston, 96
U. S. 432 ; Forster v. Scott, 136 X. Y. 577.) If the amend-
ment of 1897 applies to this case, it is unconstitutional under
section 24 of article 3 of the New York Constitution. {Matter
ofMcPherson, 104 X. Y. 306.)
Vann, J. This appeal presents the question whether the
legislature is prohibited by the Constitution, State or Federal,
from passing an act to impose a transfer tax upon the exer-
cise, by a last will and testament, of a power of appointment
derived from a deed, executed before the passage of any stat-
ute imposing a tax upon the right of succession to the property
of a decedent.
The facts out of which this question arose are as follows :
On the 30th of September, 1848, William B. Astor owned a
house and lot on Lafayette place, in the city of Xew York,
and on that day he conveyed the same to his daughter, Mrs.
Laura Delano, for life, and upon her death, without issue, to
her brothers and her sister Alida, or their issue as they might
then survive, per stirpes.
By the same deed he conferred upon Mrs. Delano a power
of appointment, to be exercised, in her discretion, by an
490 Matter of Delano. [Nov.,
Opinion of the Court, per Vann, J. [Vol. 176,
instrument " in its nature testamentary," in such a manner as
" to give the said land and premises, or any share or part
thereof, to and amongst her said * * * brothers and
sister Alida, or their issue, in such manner and proportions as
she may appoint."
On the 6th of September, 1849, said William B. Astor
transferred certificates of the public debt of the state of Ohio,
amounting to $50,000, to James Gallatin and another, in trust
to receive the income and apply it to the use of his daughter
Laura during her life, and upon her death without issue to
'transfer "the capital of the said stock * * * to her
surviving brothers and sister Alida " or their issue then surviv-
ing. . This gift was also subject to a power of appointment
created by the trust deed, whereby the said Laura was author-
ized " by any instrument duly executed as a will of personal
estate to dispose of said capital into and amongst her * * *
brothers, sister and their issue in such shares and proportions
as she may think fit and upon such limitations, by way of trust
or otherwise, as in her discretion may be lawfully devised."
William B. Astor died on the 24th of November, 1875,
about twenty-six years after the date of the last deed, and
neither of said instruments was made by him in contempla-
tion of death. Mrs. Delano, his daughter, died June 15th,
1902, without issue, leaving a last will and testament, which
has been duly admitted to probate, whereby she exercised the
power of appointment contained in said deeds in favor of
Arthur Astor Carey, her nephew.
A proceeding was commenced before the proper surrogate
to make the usual appraisal for the purpose of assessing a
transfer tax upon the property transferred and appointed by
the last will and testament of Mrs. Delano, and Mr. Carey was
notified to appear. He appeared only for the purpose of
objecting to the jurisdiction of the surrogate, from whom he
procnred an order requiring the executors of Mrs. Delano and
the comptroller of the state to show cause why the proceeding
6hould not be dismissed as to him for the want of jurisdiction.
The surrogate denied the motion, but upon appeal to the
1903.] Matter of Delano. 491
N. Y. Rep.] Opinion of the Court, per Vann, J.
Appellate Division his order was reversed and the proceeding
was dismissed as to Mr. Carey. The comptroller appealed to
this court.
Article 10 of the Tax Law relates to taxable transfers, and
embraces sections 220 to 242 inclusive. Section 220, as
amended in 1897, imposes a tax upon the transfer of any
property, real or personal, not only by will or intestate law,
but also " whenever any person or corporation shall exercise a
power of appointment derived from any disposition of prop-
erty made either before or after the passage of this act, such
appointment when made shall be deemed a transfer taxable
under the provisions of this act in the same manner as though
the property to which such appointment relates belonged abso-
lutely to the donee of such power, and had been bequeathed
or devised by such donee by will; * * *." (L. 1897, ch.
284, § 220, subd. 5.)
The learned Appellate Division held that the statute, as
amended, applied to the property in question, but that the
appointee took under the deeds and not under the will, and
the attempt of the act to impose a tax upon the property
under the guise of a tax upon succession, was retroactive and
unconstitutional.
The statute, as we read it, does not attempt to impose a tax
upon property, but upon the exercise of a power of appoint-
ment. The power in this case was exercised by will, in such
a way that the appointee became entitled to all the property,
instead of an aliquot part. "While the property came to him
by deed from his grandfather, only a part of it could have
reached him but for the will of his aunt. His title to the
most of it depended on the will, as well as upon the deed.
He is compelled to resort to the will in order to establish his
right, for the deed alone will not suffice. The privilege of
making a will is not a natural or inherent right, but one which
the state can grant or withhold in its discretion. If granted,
it may be upon such conditions and with such limitations as
the legislature sees fit to create. The payment of a sum in
gross, or of an amount measured bythe value of the property
492 Matter of Delano. [N\
Opinion of the Court, per Vann, J. [Vol. 170.
affected, may be exacted, or the right may be limited to one
or more kinds of property and withdrawn as to all others.
The legislature could provide that no power of appointment
should be exercised by will, or that it should be exercised
only upon the payment of a gross or ratable sum for the priv-
ilege. It conld exact this condition, independent of the date
or origin of the power. All this necessarily flows from the
absolute control by the legislature of the right to make a will.
{Matter of Sherman, 153 K". Y. 1, 4 ; Matter of Doics, 167
N. Y. 227, 231 ; Matjoun v. Illinois Trust cfe Sar. Banl\
170 U. S. 283 ; United States v. Perkins, 163 U. S. 625, 628 ;
Mager v. Grima, 8 How. [U.S.] 490, 493.)
We do not regard the question presented as open in this
court, for we have recently passed upon it in two cases, each
of which arose under the statute as amended in 1897. In
the earlier case a testator, who died in 1S85, created a trust
fund and gave the income thereof to his son during life,
but directed that upon his death the principal should be paid
to his issue in such shares or proportions as he should by will
appoint, with a gift directly to such issue if the power of
appointment was not exercised. The son died in 1S99, leaving
a will by which he exercised the power. We held, adopting
the opinion of the court below, that, although the ultimate
right of succession to the fund was not taxable under the
statute in force when the father died, still the shares of the
appointees under the son's will were subject to a transfer tax
under the act of 1897. {Matter of Vanderhilt, 50 App. Div.
246 ; 163 N. Y. 597.)
In the second case the testator died in 1880, after devising
certain real property in trust to pay the income to his son
during life and upon his death said realty was to ve6t abso-
lutely and at once in such of his children and the issue of his
deceased children as he should by will appoint. If, however,
the son should die intestate, the realty was to vest absolutely
and at once in his children then living and the issue of his
deceased children. The son exercised the power by his last
will and died in 1899. We held that the property was sub-
1903.] Matter of Delano. 493
K. Y. Rep.] " Opinion of the Court, per Vakn, J.
ject to the tax imposed by the act of 1897 ; that such tax was
on the right of succession and not on the property ; that what-
ever may be the technical source of title of a grantee under a
power of appointment, in reality and substance it is the exe-
cution of the grower that gives to the grantee the property
passing under it and that when the father devised the prop-
erty to the appointees under the will of his son he necessarily
subjected it to the charge that the state might impose on the
privilege accorded to the son of making a will. {Matter of
Di>ws, 167 N. Y. 227 ; affirmed, sub nom. Orr v. Oilman, 183
U. S. 278.)
The Supreme Court of the United States reviewed onr
decision, and after due consideration of the statute in ques-
tion, was unable to see that as construed by us it infringed
any provision of the Federal Constitution.
The learned judges below did not consider the Dows case in
their opinion, but they attempted to distinguish the Vander-
bilt case from the one in hand upon the ground that the power
of appointment was created by will and that the will was
made after the enactment of the Collateral Inheritance Tax
Law. The latter distinction did not exist in the Dozes case,
where the power was created before any act was passed in
this state providing for the imposition of a succession or trans-
fer tax.
We think neither distinction is well founded. As the tax
is imposed upon the exercise of the power, it is unimportant
how the power was created. The existence of the power is
the important fact, for what may be done under it is not
affected by its origin. If created by deed its efficiency is the
same as if it had been created in the 6ame form by will. No
more and no less could be done by virtue of it.in the one case
than in the other. Its effective agency to produce the result
intended is neither strengthened nor weakened by the nature
of the instrument used by the donor of the power to create it.
The power, however or whenever created, authorized the
donee by her will to divest certain defeasible estates and to
vest them absolutely in one person. If this authority had
494 Matter of Delano. [Nov.,
Opinion of the Court, per Vann, J. " [Vol. 176.
been conferred by will, instead of bjr deed, the right to act
would have been precisely the same and the power would have
neither gained nor lost in force. The statute applies to all
powers alike, without distinction on account of the method of
creation or the date of creation, and provides that the exercise
of the power shall be deemed a taxable transfer of the prop-
erty affected, the same as if it had belonged absolutely to the
donee of the power and had been bequeathed or devised by
such donee. As we said through Judge Cullen in the Dow9
case : " Whatever be the technical source of title of a grantee
under a p6wer of appointment, it cannot be denied that in
reality and substance it is the execution of the power that
gives to the grantee the property passing under it." This
accords with the statutory definition of a power as applied to
real estate, for it includes authority to create or revoke an
estate therein. (Real Property Law, §111.) Such was the
effect of the exercise of the power under consideration, for it
both revoked and created estates in the real property and
interests in the personal property. No tax is laid on the
power, or on the property, or on the original disposition by
deed, but simply upon the exercise of the power by will, as
an effective transfer for the purposes of the act. If the
power had been exercised by deed, a different question would
have arisen, but it was exercised by will and owing to the
full and complete control by the legislature of the making,
the form and the substance of wills, it can impose a charge or
tax for doing anything by will.
It is quite immaterial that there was no statute imposing a
succession tax of any kind in force when the original disposi-
tion of the property was made and the power was created.
That transfer is not taxed and the statute makes no effort to
reach it. It is the practical transfer through the exercise of
the power by will that is taxed and nothing else. The right
of the legislature to impose a tax on the privilege of exercis-
ing a power by will is not affected by the fact that no such
tax was imposed when the power was created. When the
creator of the power granted the property to the appointees
1903.] SUNDHEIMER V. ClTY OF N*EW YORK. 495
N. Y. Rep.] Statement of case.
of his daughter, as Judge Cullen said in the Dows case, " he
necessarily subjected it to the charge that the state might
impose on the privilege accorded to the " daughter " of making
a will. That charge is the same in character as if it had been
laid on the inheritance of the estate by the " daughter herself,
" that is, for the privilege of succeeding to property under a
will." If the power had not been exercised, the question
would have resembled that presented by the Pell case, relied
upon below, where we held that a statute was unconstitutional
which imposed a tax upon such remainders, already vested and
non-defeasible, as should result in an absolute title after the
passage of the act. {Matter of Pell, 171 N. Y. 48.) In that
case the transfer was completed without the aid of a will and
the effect was the same as a deed inter vivos. There was no
foundation for a succession tax, which is a charge upon the
right to.make a will, or on the right to inherit without a will.
We think that the surrogate had jurisdiction and that his
order denying the motion to dismiss the proceedings as to the
respondent was proper. It follows that the order of the
Appellate Division should be reversed and that of the surrogate
affirmed, with costs.
Parker, Ch. J., Bartlett, Haight and Cullen, JJ.,
concur ; O'Brien and Werner, JJ., dissent.
Order reversed, etc. •
Henry Sundheimer, Appellant, v. The City of New York,
.Respondent.
1. Trial — Direction of Verdict, When Improper. The direction
of a verdict in any case, where the right of trial by jury exists, constitutes
reversible error if the evidence presents a question of fact.
2. Evidence Presenting Question op Fact. The evidence upon the
trial of an action to recover damages sustained to plaintiff's premises
by flooding, alleged to have been caused by defendant's negligence in
the construction and maintenance of a sewer, examined and held to pre-
sent a question of fact which should have been submitted to the jury.
Sundheimer V. City of Neto York, 77 App. Div. 53, reversed.
(Argued November 11, 1908; decided November 24, 1903.)
496 SCNDKEIMER V. ClTV OF NEW YoBK. [Nov.,
Opinion of the Court, per Bartlett, J. [Vol. 176.
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered Janu-
ary 23, 1903, affirming a judgment in favor of defendant
entered upon a verdict directed by the court.
The nature of the action and the facts, so far as material,
are stated in the opinion.
Augustus Van Wyck and Jacob Friedman for appellant.
This being an appeal from a direction of a verdict by the
court, the appellant is entitled to the most favorable infer-
ences deducible from the evidence, and all contested facts are
to be deemed established in his favor. {Ladd v. Ins. Con
147 N. Y. 478 ; McDonald v. M. St. R. Co., 167 N. Y. 66.)
The evidence suggests many questions of fact which the jury
should have been permitted to pass upon in relation to the
construction, maintenance and use of the sewer system and
catch basins. {Volhnan v. M. R. R. Co., 134 N. Y. 418 ;
Ware v. Bos Passos, 162 N. Y. 282.)
George Z. Rives, Corporation Counsel (T/ieodore Connoly
and Terence Farley of counsel), for respondent. The record
is destitute of any competent proof that the sewer was
wrongfully, improperly, carelessly and negligently constructed
ami built. (Munk v. City of WaUrtown, 67 Hun, 264;
Hughes v. City of Auburn 21 A pp. Div. 319 ; Martin v.
City of Brooklyn, 32 App. Div. 412 ; Munn v. City of Hud-
son, 61 App. Div. 3*8 ; 1 S. & R. on Neg. [5th ed.] § 271.)
Bartlett, J. This action was brought to recover for injury
to personal property caused by the flooding of the premises
No. 716 East 169th street, between Washington and Park
avenues, in the borough of the Bronx, city of New York, on
the 24th day of August, 1901.
The sole question presented by this appeal is whether the
plaintiff offered any evidence that should have been submitted
to the jury.
The plaintiff, in attacking the judgment dismissing the com-
1903.] SlJNDHEIMER V. ClTY OF NEW YoRK. 497
N. Y. Rep.] Opinion of the Court, per Bautlett, J.
plaint, is entitled to the most favorable inferences deducible
from the evidence, and all disputed facts are to be treated as
established in his favor. (Zadd v. yEtna Lis. Co., 147 N. Y.
478, 482 ; Biggins v. Eagleton, 155 N. Y. 466 ; Ten Eyck v.
Whitbech, 156 N. Y. 341, 349 ; Bank of Monongahela Val-
ley v. Weston, 159 K Y. 201, 208 ; McDonald v. Metropoli-
tan Street Railway Co., 167 N. Y. 66 ; Place v. JT. T. C. &
II. R. R. R. Co., 167 N. Y. 345, 347.)
In the latter case the conrt said : " The defendant in its
effort to sustain the judgment is confronted by the rule so
frequently laid down in this court that we have nothing to do
with the weight of evidence ; that if a question of fact is
fairly presented it should have been submitted to the jury.
" In a very recent case (McDonald v. Metropolitan Street
Railway Co., 167 N. Y. 66) this court reviewed the authori-
ties and approved the rule laid down in Colt v. Sixth Ave. R.
R. Co. (49 N. Y. 671) as follows : ' It is not enough to justify
a nonsuit that a court on a case made might in the exercise of
its discretion grant a new trial. It is only where there is no
evidence in law, which, if believed, will sustain a verdict, that
the court is called upon to nonsuit, and the evidence may be
sufficient in law to sustain a verdict, although so greatly
against the apparent weight of evidence as to justify the
granting of a new trial.'
" In Bagley v. Bowe (105 N. Y. 171, 179) the rule is thus
stated by Judge Andrews : ' The trial court or the General
Term is authorized to set aside a verdict and direct the issue
to be retried before another jury, if in its judgment the ver-
dict is against the weight or preponderance of evidence, but
in a case which of right is triable by a jury the court cannot
take from that tribunal the ultimate decision of the fact,
unless the fact is either uncontradicted or the contradiction is
illusory, or where, to use a current word, the answering evi-
dence is a 4 scintilla ' merely.' "
Stated in brief, the plaintiff sought to recover upon three
principal grounds : (1) That the whole sewer system involved
in this action, which is known as the Mill brook watershed,
32
498 SUNDHKIMER V. ClTY OF NEW YoRK. [Nov.,
Opinion of the Court, per Bartlett, J. [Vol. 176.
containing from fifteen hundred to two thousand acres, was
inadequate both in original construction and also in main-
tenance; (2) that the catch basins were insufficient in number
and size ; (3) that the catch basins and sewers were negli-
gently allowed to remain in an improper, condition, by reason
of being clogged with earth, sand and other foreign matter to
such an extent that they were incapable of carrying off the
water in heavy rain storms.
The contents of the sewer in East 169th street flows west-
wardly into what is known as the Webster avenue trunk
sewer, which runs southerly for six miles and empties into the
Bronx Kills at the east mouth of the Harlem river. The
Webster avenue trunk sewer terminates some two miles north
of the Harlem river, at which point it discharges into the
Brook avenue sewer. The trunk sewers were constructed in
sections and at different times ; the Brook avenue was com-
pleted to 165th street in 1S79 ; the Webster avenue to 184th
6treet in 1885 and to 205th street, the northerly limit of the
water shed, in 1899 ; in the spring or summer of 1900 the
Williamsbridge 6ewer system, covering several hundred acres
and not being a part of the Mill brook water shed, was con-
nected with the Webster avenue trunk sewer. The Webster
and Brook avenue sewers aggregated some six miles in length,
and with the lateral sewers of the watershed represented a
sewer system of about one hundred and seventy-eight miles.
It appears that on the 24th day of August, 1901, it com-
menced raining at midday and at six p. m. there had been a
rainfall of two and forty -seven hundredths inches; between'
one and two o'clock there fell an inch and eight-hundredths.
Another rain storm is involved in this action, which occurred
on the fifth day of July, 1901. It commenced raining at one
forty-five p. m. and at five p. m. two and ninety-four hun-
dredths inches of water fell ; it continued to rain moderately
until ten thirty p. m., during which time thirteen-hundredths
of an inch more fell.
It is a conceded fact that the portion of East 169th street,
in which the flooded premises are located, is much lower
11)03.] SUNDIIKIMKK V. ClTY OK NlCW YoRK. 499
N. Y. Rep.] Opinion of the Court, per Bautlett, J.
than the surrounding territory. There is a very considerable
decline in 169th street from the east, and also a descending
grade from the west, making this locality unusually subject to
inundation unless a proper sewer system is furnished and
maintained.
The contention of the plaintiff is that the flooding on the
day in question was not only due to accumulated surface
water that the catch basins, by reason of previous clogging,
failed to conduct into the sewer, but also to the backing up
of the sewer through sinks and water closets into the house.
The defense interposed by the city in its answer reads as
follows : " That if any damage arose to the plaintiff, it was
occasioned in consequence of a storm of unusual severity in
which a very large and unusual quantity of rain fell, and other
conditions intervened arising from those circumstances which
the defendant had no reason to anticipate and was helpless to
guard against."
According to the proofs introduced by the city, it was
insisted that the flooding of the premises in question was due
wholly to the inability of the catch basins, even if in perfect
working order, to carry off the constantly accumulating sur-
face water during a sudden storm, and that the question of
the sufficiency of the sewers wTas in no way involved.
The city also introduced evidence bearing upon the original
construction of the sewer system in the Mill brook watershed.
A careful perusal of the record satisfies us that the plain-
tiff's evidence was sufficient to carry the case to the jury.
There was evidence as to previous overflows in this locality
and numerous complaints served on the proper city authori-
ties ; the earliest of these was in 1896 ; several witnesses tes-
tified to the fact that at the time of floodings, waters set back
through the closets and sinks in the houses, as well as flowed
over the curb from the street ; that the covers of manholes in
Webster avenue and 169th street were blown into the air
from two to four feet, and a large stream of water followed.
The plaintiff also proved by a civil engineer that the forcing
off of the manhole covers was evidence of stoppage in one or
500 People ex rel. Dinsmore v. Vandewater. [Nov.,
Statement of case. [Vol. 176.
more sewers by foreign material and a backing up of the
water therein.
The plaintiff also introduced evidence as to the condition
of the catch basins just prior to this storm, tending to show
that they were not in working order ; also other evidence not
necessary to examine in detail.
We express no opinion as to the merits of this controversy,
or the weight of the evidence, desiring that the new trial shall
proceed under all the issues without prejudice to the rights of
either party.
It is clear that under the rule of law already adverted to,
the learned trial judge was in error when he refused to sub-
mit this case to the jury.
The judgments of the Trial Term and the Appellate Division
should be reversed and a new trial granted, with costs to the
plaintiff in all the courts to abide the event.
Haight, J. I concur for reversal upon the ground that
the evidence presented a question of fact for the determina-
tion of the jury, as to whether the defendant was guilty of
negligence in failing to exercise reasonable care to keep the
sewer and catch basins free from obstruction.
Parker, Ch. J., O'Brien, Vann, Cullen, Werner, J J.,
(and Haight, J., in memorandum), concur.
Judgments reversed, etc.
The People of the State of New York ex rel. Clarence
6. Dinsmore, Respondent, v. H. Fremont Vandewater
et al., Individually and as Members of the Town Board of the
Town of Ilyde Park, et al., Appellants.
1. Highways —New York and Albany Post Road — Power of
Town Officers of Town of Hyde Park to Alter and Improve
Same — Not Affected by Chapter 423 of Laws of 1896. The town
board and commissioners of highways of the town of Hyde Park, Dutch-
ess county, having had, under colonial laws and statutes of the state
prior to the enactment of chapter 423 of the Laws of 1896, the power to
alter and improve the New York and Albany post road, running through
1903.] People ex rel. Dinsmoke v. Vandewater. 501
N. Y. Rep.] Statement of case.
that town, such power is not restricted or taken away by the latter act,
since there is notbing in the provisions thereof that in any manner limits
their jurisdiction or powers over that highway, except in one particular,
that they are prohibited thereby from authorizing or licensing the laying
of any railroad track upon the highway, except to cross the same; they
have, therefore, the power, upon the petition of a taxpayer of the town,
to authorize an alteration and improvement of a part of said road, lying
within the town and within the premises of the petitioner, such improve-
ment to be made by petitioner and at his expense, and upon the satisfac-
tory completion thereof, to accept the road as changed and improved.
2. Same — Power op Town Officers of Town of IItde Park Not
Restricted or Affected by Section 77 of the County Law, Relat-
ing to the Alteration of State Roads. The power of the town board
and highway commissioners to authorize the alteration and improvement
in question is not restricted or made dependent upon the consent of the
board of supervisors of Dutchess county by the provisions of section 77
of the County Law (L. 1892, ch. 686), providing that the board of super-
visors of any county may authorize the commissioners of highways of any
town in their county to alter or discontinue any road or highway therein,
which shall have been laid out by the state, since it is apparent, from an
examination of the Colonial Laws (Col. Laws, 1703. ch. 181; 1772, ch. 1536),
and the statutes of the state (L. 1770, ch. 31; L. 1797, ch. 48; L. 1818,
ch. 88), relating to the laying out, construction and maintenance of the
New York and Albany post road and other public highways established
prior to 1813, that under the colonial laws as early as 1772, especially in
Dutchess county, where the alteration in question was made, commission-
ers of highways were empowered to alter highways that were deemed
inconvenient, and that this power was continued by the state legislature in
1779 and by general laws in 1797 and 1818, and that the same power has
been continued until the present day; it follows, therefore, that at the
time of the passage of the County Law and of chapter 317 of the Laws
of 1882, and even of chapter 83 of the Laws of 1817, the substance of
.which statutes is contained in section 77 of the County Law, the commis-
sioners of highways of towns had been given jurisdiction over the existing
colonial highways, with the power to make such needed alterations
therein as should be deemed necesary, and that power has not been taken
from them by the County Law.
People ex rel. Dinsmore v. Vandewater, 83 App. Div. 54, reversed.
(Argued November 9, 1903; decided November 24, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the second judicial department, entered June
5, 1903, which annulled a determination of the town board
and highway commissioners of the town of Hyde Park alter-
502 People ex rel. Dinsmore v. Vandewateu. [Nov.,
Points of counsel. [Vol. 176.
ing and closing a part of the New York and Albany post
road in that town.
The facts, so far as material, are stated in the opinion.
Harry C. Barker and Henry B. Anderson for appellants.
The highway commissioners of the town of Hyde Park have
authority to alter the New York and Albany post road. (L.
1890, ch. 586, § 80 ; People ex rel. v. Jones, 63 N. Y. 306 ;
Gress v. Hilliard, 85 App. Div. 510 ; People ex rel. v. Hil-
dreth, 126 N. Y. 360 ; EnyUman v. Longhorkt, 120 N. Y. 332 ;
BucTcholz v. N. Y., L. E. db W. R. R. Co., 71 App. Div. 452.)
The petition and affidavits on which the writ of certiorari was
issued show that all of the provisions of the statute relative to
the alteration of highways have been complied with, and that
the town authorities acted within the scope of their authority.
{Buckholz v. N. Y., L. E. <& W. R. R. Co., 71 App. Div. 452 ;
People ex rel. v. Jones, 63 N. Y. 306 ; EngUman v. Long-
horst, 120 N. Y. 332.) The only question which can be
reviewed in this proceeding is the primary one of jurisdiction.
{People ex rel. v. Betts, 55 N. Y. 600 ; People ex rel. v. Brady \
166 N. Y. 44 ; People ex rel. v. Canal Bd., 7 Lans. 220 ;
People ex rel. v. Dewey, 1 Hun, 529 ; People v. Wheeler, 2L
N. Y. 82 ; People v. Webb, 50 N. Y. S. R 46 ; People ex rel.
v. Comrs., 106 N. Y. 64 ; People ex rel. v. Suprs., 17 App.
Div. 197 ; People ex rel. v. WursUr, 149 N. Y. 549.) The
writ of certiorari herein should not have been issued. No
cause was shown therefor. {People ex rel. v. Comrs., 93 N.
Y. 97 ; People ex rel. v. Hayden, 7 Misc. Rep. 278 ; Elliott
on Roads & Streets [2d ed.], 404, 405.)
Egerton L. Winthrop, Jr., William Jay and Elamen B.
Candler for respondent. The action of the appellants, the
town board and highway commissioners, in closing part of the
New York and Albany post road and making a new road in
its place, was without warrant in law and in violation of the
express provisions of the statute. (L. 1896, ch. 423; People
ex rel. v. Wood, 71 N. Y. 371 ; People ex rel. v. Spicer, 99
1903.] People ex rel. Dinsmore v. Vandewater. 503
N. Y. Rep.] Opinion of the Court, per Hatght, J.
N. Y. 233 ; Drake v. State, 144 N. Y. 417.) If the court,
however, should hold that this act of 1896 has no bearing
upon section 80 of the Highway Law under which the pro-
ceedings of the highway commissioners were taken and that
this road is still under the jurisdiction of local authority, then
the proceedings to close the same were not in conformity with
the proper statute, for the reason that this is a state road,
established for over 200 years, which could only be closed in
the manner provided for by the law applicable to the altering
of a state road. (R. dk Z. O. W. Co. v. City of Rochester,
176 N. Y. 37.)
IIaight, J. These proceedings were instituted by a peti-
tion on behalf of the relator, a resident taxpayer of the town
of Hyde Park, for a writ of certiorari to review the action of
the town board and highway commissioners of that town. in
altering a part of the New York and Albany post road. On
the 11th day of October, 1900, one Ogden Mills, a taxpayer
of the town, presented an application to the commissioners of
highways for an alteration in the New York and Albany post
road for a distance of about fifteen hundred feet, running
through his premises. It was represented that the proposed
change would do away with a bad curve in the old road, avoid
a hill and eliminate the danger to horsemen owing to the
close proximity of the old road to the railroad. The town
board consented to the proposed change and the highway
commissioners made an order therefor in accordance with the
application, providing that the land forming the bed of the
old highway should, upon the completion of the proposed
alteration, revert and become the property of the petitioner.
Thereupon the new highway was constructed in a substantial
manner, trees set upon the sides and the same was accepted
by the commissioners of highways, and permit granted to the
petitioner to close the old highway.
The learned Appellate Division appears to have reached
the conclusion that the action of the local authorities in per-
mitting the alteration was void and unauthorized, by reason
504 People ex rel. Dinsmore v. Vandewater. [Nov.,
Opinion of the Court, per Haight, J. [Vol. 176.
of the provisions of chapter 423 of the Laws of 1896. That
act is entitled " An act to preserve forever the New York and
Albany post road as a state public highway." The provi-
sions are as follows : " § 1. The old established road along
the valley of the Hudson River from the city of New York
to the city of Albany, known as the Albany post road, shall
be a public highway for the use of the traveling public for-
ever. § 2. The said highway shall be kept open and free to
all travelers, and shall not be obstructed in any way by any
obstacle to free travel. § 3. No trustees of any village or cor-
poration of any city upon its route, or board of commissioners
of highways of towns, or any other person or board whatever,
shall have any power or authority to authorize or license the
laying of any railroad track upon said highway, except to cross
the same, and any such action shall be void and of no effect.
§ 4. This act shall not apply to any portion of said road within
the city of New York, nor shall it apply to the road of the
president, directors and company of the Rensselaer and Colum-
bia turnpike, nor to the villages of Sing Sing or Peekskill, in
Westchester county."
In construing statutes we should have in mind the legis-
lative intent and the purpose sought to be accomplished. It
will be observed that there is nothing in the provisions of the
statute that in any manner limits the jurisdiction or powers of
local officers over the highway except in one particular. By
its first and second sections it is provided that it " shall be a
public highway for the use of the traveling public forever,"
and that it " shall be kept open and free to all travelers, and
shall not be obstructed in any way." These provisions are
but the repetition of the law as it exists with reference to all
of the public highways of the state. They are all under the
control of the legislature, and are required to be kept open
and free to the traveling public forever unless they are discon-
tinued in such manner as the legislature directs. But by the
provisions of section three of the act we find express limita-
tions placed upon the board of commissioners of highways of
towns or other local officers thereof prohibiting them from
1903.] People ex rel. Dinsmobe v. Vandewater. 505
N. Y. Rep.] Opinion of the Court, per Haight, J.
authorizing or licensing the laying of any railroad track upon
the highway except to cross the same. Here we have, in
clear concise language, disclosed the purpose and evident intent
of the legislature. It was not to change the jurisdiction of
officers over the care and management of the highway except
to prohibit them from permitting the laying of railroad tracks
therein, and this is emphasized by the provisions of section
four of the act, wherein there is excepted from the operation
of the statute, doubtless, for the purpose of permitting the
operation of existing or contemplated street railroads, that
portion of the highway lying in the city of New York, in cer-
tain villages mentioned and the Rensselaer and Columbia
turnpike. With this exception the powers of the town board
and of the commissioners of highways of the town of Hyde
Park remain unimpaired, and, therefore, if they had the power
to alter and improve the road prior to the passage of this act,
then such power still exists and may be exercised by them.
It is now contended on the part of the respondent that the
highway in question was a state road and that the town
authorities had no power to alter the same unless authorized by
the board of supervisors of the county in accordance with the
provisions of section 77 of the County Law. That statute pro-
vides as follows : " The board (referring to the board of super-
visors) may authorize the commissioners of highways of any
town in their county to alter or discontinue any road or high-
way therein, which shall have been laid out by the state under
the same conditions that would govern their actions in rela-
tion to highways that have been laid out by local authorities."
This is a substantial re-enactment of chapter 317 of the Laws
of 1882 which was evidently intended to take the place of
chapter 83 of the Laws of 1817, which is as follows:
u Whereas, great inconvenience has arisen from the want of
authority in the commissioners of highways of the several
towns in the state \o alter and amend such highways as are
laid out by special acts of the legislature, commonly called
state roads / and in order to prevent application being made
to the legislature for every alteration in said roads as are sup-
506 People ex rel. Dinsmore v. Vandewater. [Nov.,
Opinion of the Court, per Haight, J. [Vol. 176.
posed to be necessary — Therefore be it enacted by the people
of the state of New York, represented in Senate and Assem-
bly, That it shall be lawful for the commissioners of high-
ways of any town in this state, through which a state road
passes, on being applied to by twelve freeholders of such town
and with the consent of the commissioners of highways of the
adjoining towns through which said road passes, to regulate
and alter such road, in the said town, if in their opinion the
public good and convenience shall require the 6ame : Provided,
however, That no such alteration shall alter the general route
of the road : And, also, That the provisions of the act, entitled
i an act to regulate highways,' relative to the alteration and
amendment of public roads, shall be held to extend to such
alteration, as aforesaid, of any state road." The recitals preced-
ing the enactment indicate very clearly the purpose sought to be
accomplished by the legislation. Numerous special acts of the
legislature had been passed, after the organization of the state,
laying out what were called state roads. Many of these roads
were located and constructed through the agency of state
officers with state aid and not by the officers of the locality
through which the road was laid out. It was with reference
to these highways that the inconvenience arose with reference
to needed alterations, and the purpose of the act was to avoid
application to the legislature for leave to make every change
deemed necessary, by giving the power to make such altera-
tions to the commissioners of highways of the towns upon appli-
cation of twelve freeholders, etc. But it will be observed that
there is nothing in this legislation, or that of chapter 317 of
the Laws of 1882, or of section 77 of the County Law, that in
any particular purports to limit or deprive commissioners of
highways of any of the powers that they theretofore possessed
with reference to the altering of highways. It is, doubtless,
true that as to highways that have been laid out by special
statutes the power of the commissioners of highways to change
and alter the same is dependent upon the legislation to which
we have referred, and that under the County Law tiieir
power is now dependent upon the consent of the board of
1903.] People ex rel. Dinsmoke v. Yandewater. 507
N. Y. Rep.] Opinion of the Court, per Haioht, J.
supervisors of the county ; but these highways are limited to
those authorized by the special acts of the legislature and do
not include such highways as had before been given over to
the care of the commissioners of highways of towns with power
on the part of the local officers thereof to make needed altera-
tions. This brings us to a consideration of the history of the
road in question and the legislation bearing thereon.
The New York and Albany post road was constructed under
the provisions of chapter 131 of the Colonial Laws of 1703.
It was a general statute entitled " An act for the laying out,
regulating, cleaning and preserving public common highways
throughout this Colony." It provides as follows : " For the
better laying out ascertaining, repairing and preserving the
publick comon and general highways within this Colony. Be
it enacted by the Govr. council and General Assembly of this
Colony and by the Authority of the same. That there be laid
out preserved and kept for ever in good and sufficient repair
one publick comon & general highway to extend from the
now scite of the City of New York thro' the City and County
of New York and the county of West Chester of the breadth
of four rod English measure at the least, to be continue and
remain forever the publick comon general road and highway
from the said City of New York to the adjacent Collony of
Connecticut. * * * And one other publick comon gen-
eral highway to extend from Kings Bridge in the county
of West Chester thro' the same county of West Chester
Dutchess county and the county of Albany of the breadth of
four rod English measure at the least to be continue and
remain for ever the publick comon general road and highway
from King Bridge aforesaid to the ferry at Crawlew over
against the City of Albany." It also contained provisions for
the laying out of other roads connecting towns and villages to
one another and to such convenient landing places as their
situations will afford, " for the better and easier transporta-
tion of goods and the commodious passing of travelers as
direct and convenient as the circumstances of place will
admit of." Commissioners were appointed in the different
508 People ex bel. Dinsmore v. Vandewater. [Nov.,
Opinion of the Court, per Haight, J. [Vol. 176.
localities to carry out the provisions of the act, including
New York, Dutchess and Westchester counties, thus laying
the foundation upon which our highway laws have been con-
structed and perfected. Numerous amendments were made
from time to time from which the growth of the law
is disclosed, which may be interesting as history, but are
not essential to be here considered. As early as 1772 wo
find that in Dutchess county the freeholders and inhabitants
of each precinct at their annual town meetings were required
to elect three highway commissioners to regulate highways
in their precinct. The provision of the law, as far as mate-
rial, is as follows : " That the commissioners, or the major
part of them, in their respective precincts for which they
shall be chosen commissioners, are hereby empowered and
authorized to regulate the roads already laid out, and if
any of them shall appear inconvenient, and an alteration
absolutely necessary, and the same be certified upon the oath
by twelve principal f reeholders of the said county, the com-
missioners may, provided they all judge it necessary, alter the
same, and lay out such other public highways and roads as
they, or the major part of them shall think most convenient."
(Colonial Laws, 1772, chapter 1536.) The next statute to
which we call attention is chapter 31 of the Laws of 1779,
after the organization of the state government, entitled " an
act for the better laying out, regulating and keeping in
repair all common public highways and private roads in the
counties of Ulster, Orange, Dutchess, Charlotte and West
Chester." This statute contains a similar provision to that
found in the colonial laws already referred to. It gives to
the commissioners of highways the power and authority " to
regulate the roads already laid out, and if any of them shall
appear inconvenient and an alteration necessary * * *
they may be required to alter the 6ame in such manner as a
majority of the commissioners in such town, manor, district or
precinct shall judge meet and convenient." This act was fol-
lowed by chapter 43 of the Laws of 1797, a general act cover-
ing all of the state except the counties of New York, Suffolk,
1903.] People ex kel. Dinsmoiie v. Vandewater. 509
N. Y. Rep.] Opinion of the Court, per Haight, J.
Queens and Kings. In this act the commissioners of high-
ways are given the power " to regulate the roads already laid out
and to alter such as they or a majority of them shall conceive
inconvenient." This statute, with some amendments, was
continued in force until 1813, when it was superseded by the
general highway act (Chapter 33 of that year) containing the
same provisions, and this, with some amendments, was carried
into the Revised Statutes and is now incorporated into our
Highway Law. It is thus apparent that under the colonial laws
as early as 1772, especially in Dutchess county where the alter-
ation in question was made, commissioners of highways were
empowered to alter highways that were deemed inconvenient,
and that this power was continued by the state legislature in
1779 and by general laws in 1797 and 1813, and that the same
power has been continued until the present day. It, there-
fore, follows that at the time of the passage of the County
Law, or of chapter 317 of the Laws of 1882, or even of chap-
ter 83 of the Laws of 1817, the commissioners of highways
of towns had been given jurisdiction over the existing colo-
nial highways, with the power to make such needed alterations
therein as should be deemed necessary, and that that power
has not been taken from them by the County Law.
The New York and Albany post road appears to have been
authorized by colonial legislation two hundred years ago. It
was constructed and kept in repair by commissioners appointed
in the localities, and for over one hundred and thirty years in
Dutchess county it has been under the jurisdiction and con-
trol of the local highway officers of that locality, who have
had the power to make such alterations as a majority of them
should conceive to be convenient for the public. These
authorities, in making the alteration complained of, appear to
have conformed to the requirements of the statute. The
improvement is one that they had the power to make, and it
does not appear to us that the relator is concerned with refer-
ence to the validity of the title of Mills to the bed of the old
highway. We, consequently, do not deem it important to dis-
cuss that question at this time.
510 People kx rel. Dinsmork v. Vanpk water. [Nov.,
Dissenting opinion, per Bautlett, J. [Vol. 176.
The order of the Appellate Division should be reversed
and the writ of certiorari dismissed, with costs.
Bartlett, J. (dissenting). The single question is presented
by this appeal whether the members of the town board and
the highway commissioners of the town of Hyde Park, in the
county of Dutchess, had jurisdiction to alter the route of the
New York and Albany post road in that town.
The post road was created by chapter 131, Colonial Laws,
1703, and has remained a public highway ever since, a period
of two hundred years.
The County Law (§ 77) contained in article 4, defining the
duties of boards of supervisors relating to highways and
bridges, which is a revision, without material change, of the
Laws of 1882 (Chap. 317), provides that "The board of
supervisors of any county may authorize and empower the
highway commissioners of any town to alter, discontinue,
widen, or narrow any road or public highway which shall
have been laid out by the state within its boundaries, under
the same conditions as would govern their action in relation to
public highways that have been laid out by local authorities."
(Birdseye's R. S., Vol. 1 [3d ed.], p. 839.)
It is conceded that in the case before us no power was con-
ferred upon the town board and commissioners of highways
by the board of supervisors of Dutchess county, but it is
argued that the section quoted does not include the post road,
• for the reason that it was not laid out by the state as now
existing.
The act of 1703, laying out the post road and other public
highways, starts out with the declaration, " That there be laid
out and kept forever," etc. We thus have the post road, a
public highway, in the colony of New York, and when the
latter achieved its independence the former continued a state
public highway under the jurisdiction of the 6tate of New
York, and is clearly within the provisions of section 77 of the
County Law as properly construed.
It is doubtless true that since the existence of public state
1903.] Pkoplk ex rel. Dinsmore v. Vandewater. 511
N. Y. Rep.] Dissenting opinion, per Bartlett, J.
roads in the early days, the colonial assembly did, from time
to time, confer the power upon the local authorities of towns
to alter, repair and keep in proper condition that portion of a
state road lying within the boundaries of a town.
In 1817 (Chap. 83) the policy was changed and the local
authorities could only alter a state public highway in a par-
ticular town with the consent of the commissioners of high-
ways of the adjoining towns through which it passed.
It is manifest that the legislation of 1882 (Chap. 317), per-
petuated in section 77 of the County Law, was a clear expres-
sion of the legislative intention to change still further its
policy and to delegate to a certain extent its powers in rela-
tion to state roads to the board of supervisors in each county,
thus placing under the control of the latter all alterations
thereof.
It follows that the town board and highway commissioners
of the town of Hyde Park were without jurisdiction in the
premises until authorized to act by the board of supervisors
of Dutchess county.
An evidence of the supervising care of the legislature over
state public highways is found in chapter 423, Laws of 1896.
entitled "An act to preserve forever the New York and
Albany post road as a state public highway." The material
portions of this act read as follows :
" Section 1. The old established road along the valley of
the Hudson river from the city of New York to the city of
Albany, known as the Albany post road, shall be a public
highway for the use of the traveling public forever.
" § 2. The said highway shall be kept open and free to all
travelers, and shall not be obstructed in any way by any
obstacle to free travel.
" § 3. No trustees of any village or corporation of any city
upon its route, or board of commissioners of highways of
towns, or any other person or board whatever, shall have any
power or authority to authorize or license the laying of any
railroad track upon said highway, except to cross the same,
and any 6iich action shall be void and of no effect. * * * "
512 People ex rel. Dinsmore v. Vandewater. [Nov.,
Dissenting opinion, per Bartlett, J. [Vol. 176.
It is argued that sections one and two are but a repetition of
the law as it exists, and that the sole object of this act was to
prevent the laying of any railroad track upon the post road.
In my opinion the act is very unfortunately worded, includ-
ing the title, if its sole object was as suggested. The title
should have been, " An act to prevent the laying of any rail-
road track upon the New York and Albany post road," and
section three would have sufficed in carrying out this alleged
sole object of the act. The fact is that the title of the act is
used with entire accuracy — " An act to preserve forever the
New York and Albany post road as a state public highway."
Section one makes the post road a state public highway if
in law it had not theretofore existed as such.
This act clearly brings the post road within section 77 of
the County Law, and renders the authorization of the board
of supervisors necessary before the local authorities can alter
the route of the same.
I have already stated the reason why the post road has
always been a state public highway since the Revolutionary
war, but if any legal doubt existed it is set at rest by the act
of 1896.
Sections two and three of this act disclose the legislative
intention to prevent all interference with the post road as a
state public highway, except as the board of supervisors may
act under the powers delegated to them under section 77 of
the County Law.
I vote for the affirmance of the order of the Appellate
Division annulling the action of the town board and highway
commissioners of the towu of Hyde Park.
Parker, Ch. J., O'Brien, Vann, Cullen and Werner, J J.,
concur with Haight, J. ; Bartlett, J., reads dissenting
opinion.
Order reversed, etc.
1903.] People ex rel. Lester v. Eno. 513
N. Y. Rep.] Statement of case.
The People of the State of New York ex rel. Garra K.
Lester, Respondent, v. Joseph H. Eno et al., Constituting
the Town Board of the Town of Hamburg, Appellants.
Certiorari— Return to Certiorari to Review Determination
of Town Board Made by Majority of Board Is Conclusive upon
Appellate Division — Separate Return Made by One Member
of Board Cannot Be Considered. Where it appears from the papers
and proceedings upon a writ of certiorari, issued to review the determi-
nation of a town board in disallowing a claim presented thereto, that
the only matter in issue was the employment of the relator by the town
board of health to render services as a physician to certain smallpox
patients during a certain period, and the return made by a majority of the
town board specifically denies such employment and distinctly traverses
every allegation of the relator's petition in that behalf, such return is
conclusive upon the Appellate Division and the writ should be dismissed,
notwithstanding one of the town board made a separate return corroborat-
ing the petitioner, since there can be but one return to a writ of certiorari,
unless a second is directed or permitted by the court because the first is
defective or insufficient in form; and where a writ of certiorari is issued to
review the determination of a board or body composed of two or more
persons the return must be made in the name of the board or body and
may be executed by a majority of the members thereof; the return of the
majority of the members is, therefore, the only return which the Appel-
late Division has the right to consider, and the separate return should be
disregarded.
People ex rel. Lester v. Eno, 84 App. Div. 55, reversed.
(Argued November 9, 1903; decided November 24, 1908.)
Appeal from an order of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
June 4, 1903, which sustained a writ of certiorari to review
the proceedings of the defendants in disallowing a portion of
a claim of relator against the town of Hamburg and directed
the audit of such claim in full.
In August, 1902, the relator, a practicing physician of the
village of Blasdell, town of Hamburg, Erie county, presented
to the town board of that town a claim for services performed
by him in caring for certain persons afflicted with the disease
33
514 People ex bel. Lester v. Eno. [Nov.,
Statement of case. [Vol. 176.
of smallpox. The claim was for services running from April
29th, 1902, to and including May 29th, 1902, and amounting to
$318.95. The town board deducted from the claim as pre-
sented the sum of $110, and audited the same at $208.95.
That part of the claim which was disallowed represented the
first eleven days of relator's services at $10 a day, ranging
from April 29th to May 9th, 1902, during which time, it
was claimed, the relator had not been employed by the town
and that, therefore, the town was not liable. The relator there-
upon sued out a writ of certiorari to review the determination
of the town board in respect to the part of the claim which
had been disallowed. The Appellate Division annulled the
determination of the town board, and remitted the matter to
that body with directions to audit the relator's claim as pre-
sented in his account.
The relator's petition for the writ sets forth, in substance,
that on or about the 29th of April, 1902, he discovered that
two persons residing in the town of Hamburg were afflicted
with smallpox, and that on that day he reported the matter to
the health physician of the town who requested him to remain
in attendance upon such persous until he could call a meeting
of the health board to take action in the matter ; that a meet-
ing of that board was called for and held on the following
day, April 30th ; that at this meeting the health board
authorized the relator to take care of such persons and all
other persons in the town frho should contract the disease and
promised to pay him the reasonable value of his services
therein ; that the relator continued in attendance upon these
persons and other persons stricken with the disease, and per-
formed the necessary vaccination, fumigation and quarantin-
ing ; that the relator's compensation not having been fixed
on May 7th, he then wrote a letter to the health board stat-
ing that his services were wortli $10 a day and unless that
amount was agreed to be paid him he would be unable to con-
tinue his services, and asked the board to inform him at once
whether they desired to retain his services ; that on May 9th
the town board duly passed a resolution employing the relator
1903.] People ex rel. Lester v. Eno. 515
N. Y. Rep] Statement of case.
to take charge of the persons suffering from smallpox in the
town and fixing his compensation at $10 per day.
Attached to the relator's petition are extracts from the min-
utes of the health board and the town board referring to the
matter of caring for the smallpox patients of the town and
the employment of the relator in that behalf. The minutes
of the health board disclose that Dr. Bourne, the health phy-
sician, reported that he was called by the relator to see two
smallpox patients on April 30th, 1902, and that a quarantine
should be established over the houses occupied by these per-
sons. A resolution was thereupon adopted directing the
removal of the two persons to the pest house, and the estab-
lishment of a quarantine upon the houses occupied by them ;
that on May 3rd, 1902, the health board held another meeting
at which it was decided to pay to the health department of
the city of Buffalo the sum of $15 per week for each person
sent to the Buffalo pest house from the town of Hamburg
under the order of B. S. Bourne, the health officer of that
town ; that on the 9th of May, 1902, the health board again
met and adopted a resolution which, after reciting the estab-
lishment of a provisional pest house in the town, provided for
the employment of the relator in the following language :
" Resolved, that wo employ Garra K. Lester as physician to
care for all patients sent to said pest house by the health phy-
sician of said town, and also to attend all persons quarantined
in or near Blasdell, N. Y., until such quarantine shall be raised
by the health physician. The said Garra K. Lester shall
receive the sum of ten dollars per day for such services and
for such time as the health physician shall deem proper. Said
Garra K. Lester to furnish all medicines and ointments
required by such patients." The minutes of the meeting of
the town board on May 9th disclose that the relator's com-
munication of May 7th to the health board was read and an
adjournment taken until 3 o'clock in the afternoon of that
day. At the adjourned meeting there was some talk as to the
employment of a physician and the members of the board not
being able to agree upon the matter a recess was taken until
516 People ex rel. Lester v. Eno. [Nov.,
Statement of case. [Vol. 176.
8 o'clock. At this adjourned meeting the town board adopted
a resolution identical in language with the resolution of the
health board previously adopted on the same day.
The relator's petition is corroborated by the affidavits of
Oliver C. Salisbury, a member of both the town and health
boards, and Henry J. Danser, a resident of the town.
Five members of the town board, constituting a majority
thereof, made a return to the writ issued herein, denying spe-
cifically, on information and belief, all the allegations of the
petition relating to the relator's employment by the health
board previous to May 9th, 1902. There is no denial as to
the rendition of relator's services prior to that date, but the
return puts in issue the relator's employment and his right to
compensation previous to the adoption of the resolution of the
town board engaging him to take care of the smallpox patients
of the town.
The defendant Salisbury also made a separate return to the
writ in which he stated, in substance, that at a meeting of the
health board called to consider the matter of caring for the
smallpox patients of the town and preventing the spread of
the disease, the relator was authorized to care for such patients
and others who might contract the disease, and that it was
agreed on behalf of the town to compensate him therefor ;
that the health board authorized him, Salisbury, and the
health physician to take all necessary steps to check the
disease and that the services of the relator were rendered with
the sanction and under the direction of Salisbury and the
health physician.
The health physician, however, made an affidavit which
was attached to the majority return of the town board, in
which he denied that he or Salisbury employed the relator on
behalf of the town to care for smallpox patients, and further
denied all the allegations of the petition and Salisbury's
return relating to the employment of the relator prior to
May 9th.
The court upon motion granted leave to the defendants to
file a supplemental return controverting the allegations of the
1903.] People ex rel. Lester v. Eno. 517
N. Y. Rep.] Opinion of the Court, per Werner, J.
separate return made by Salisbury, and also permitted the
tiling of the affidavit of the health physician attached to the
original return.
Charles Diebold, Jr., for appellants. The return of the
town board is conclusive as to the facts. (L. 1892, ch. 677,
§ 19; People v. Webb, 50 N. Y. S. K. 46; Code Civ. Pro.
§ 2138 ; People ex rel. v. Wurster, 149 N. Y. 549 ; People v.
Barker, 152 N. Y. 417; People ex rel. v. Bd. of Excise, 91
Hun, 94.)
Levant D. Lester for respondent. The hearing in this pro-
ceeding must be upon the writ and returns and the papers
upon which the writ was granted. (Code Civ. Pro. § 2138 ;
People ex rel. v. Ileddon, 32 Hun, 299 ; People ex rel. v.
York, 45 App. Div. 503 ; Code Civ. Pro. § 2139 ; People ex
rel. v. Bd. of Auditors, 39 App. Div. 30 ; People ex rel v.
Vanderpoel, 35 App. Div. 73 ; People ex rel. v. Assessors,
6 Lans. 105 ; Lawton v. Comrs. of Cambridge, 2 Caines,
179 ; People v. Davis, 38 Hun, 43 ; People ex rel. v. Police
Comrs., 55 How. Pr. 454.) The fact that five members of
the town board join in a return and designate it the return of
the town board does not bind this court to the sole considera-
tion of their return as stating the facts, or even make their
return the return of the town board. (Code Civ. Pro. §§ 2129,
2130 ; People ex rel. v. Fire Comrs., 73 N. Y. 437; Rector v.
Clark, 78 N. Y. 21 ; People ex rel. v. Martin, 142 N. Y.
228 ; Beardslee v. Dolye, 143 N. Y. 160.) Material allega-
tions of fact in the petition, not controverted by the returns,
are presumed to be admitted and must be so regarded on this
hearing. {People ex rel. v. Sutphin, 166 N. Y. 163 ; People
ex rel. v. Bd. Suprs., 30 How. Pr. 173 ; Code Civ. Pro.
§ 2140.)
Werner, J. In reversing the action of the town board
disallowing the relator's claim fcr services rendered prior to
May 9th, 1902, the learned Appellate Division evidently failed
to give effect to the rule that the denials and allegations of a
518 People ex rel. Lester v. Eno. [Nov.,
Opinion of the Court, per Werner, J. . [Vol. 176.
return to a writ of certiorari must be taken as true, so far as
they put in issue the material allegations of the petition for
the writ. This is clearly shown by the statement in the
opinion that " while the return of a majority of the town
board to the relator's petition in form denies many of the
allegations thereof, we are impressed with the idea that such
denial is merely formal and designed mainly for the purpose
of raising an issue."
The Code of Civil Procedure (§ 2138) provides that proceed-
ings upon certiorari " must be heard upon the writ and return
and the papers upon which the writ was granted," and this
court has held that this " does not mean that the court is at
liberty to look beyond the return and consider the facts stated
in the petition and accompanying papers, unless the return is
an admission of those facts, or the equivalent of an admis-
sion." (People ex rel. Miller v. Wurster, 149 N. Y. 549.)
The return must be taken as conclusive and acted on as true.
If false in fact the remedy is in an action for false return ; if
insufficient in form by compelling a further and more specific
return. {People ex rel. Sims v. Bd. Fire Commrs., 73 N.
T. 437.) From this brief statement of the law relating to
certiorari proceedings, it is apparent that if the denials of the
return put in issue the material allegations of the papers
upon which the writ was granted, the court below had no
power to look beyond the return for the supposed equities of
the case.
The foregoing recital of the proceedings herein discloses
that the only matter in issue is the emplojrment of the relator
by the town of Hamburg to render services in the case of
smallpox patients in that town during the period between the
29th of April and the 9th of May, 1902. The return made
by a majority of the town board specifically denies such
employment, and distinctly traverses every allegation of the
relator's petition in that behalf. This was conclusive upon the
Appellate Division and the writ should have been dismissed.
Upon the argument before us counsel for the relator con-
tended that as the return of the town board was made by only
1903.] People ex rel. Lester v. Eno. 519
N. Y. Rep. J Opinion of the Court, per Werner, J.
a majority of its members and not by all of them, the Appel-
late Division had the right to consider the separate return of
Salisbury, one of the members of the town board, which
tended to corroborate the allegations of the relator's petition.
We think this contention is not well founded. There can be
only one return to a writ of certiorari, unless a second return
is directed or permitted by the court because the lirst one was
defective or insufficient in form. If the original return is
false in fact the remedy, as we have seen, is an action for a
false return. Wljen a writ of certiorari is issued to review
the determination of a board or body composed of two or
more persons, the return to the writ is to be made in the name
of the board or body, and may be executed by a majority of
the members thereof. {People ex rel. Gambling v. Cholwell,
6 Abb. Pr. 151 ; Plymouth v. County Commrs^ 16 Gray, 341 ;
People ex rel. Toohey v. Webb, 50 N. Y. St. Kep. 46.) The
provisions of section 2134 (Code Civ. Pro.), directing that
" each person upon whom a writ of certiorari is served * * *
must make a return," etc., is not in conflict with the view
that the return of a body or board may be made by a
majority of its members, because the noun "person" is
clearly used to denote any person or legal entity to whom a
writ is directed. The return of the majority of the members
of the town board was, therefore, the only return which the
court below had the right to consider, and the separate return
made by Salisbury, one of its members, should have been
disregarded.
For these reasons the order of the Appellate Division must
be reversed and the writ herein dismissed, with costs.
Parker, Ch. J., O'Brien, Bartlett, Haight, Vann and
Cullen, J J., concur.
Order reversed, etc.
j
520 Holly v. Gibbons. [Dec,
Statement of case. [Vol. 176.
Sally Maria Holly, as Executrix of George Holly,
Deceased, Respondent, v. Edwari> Gibbons, Individually,
and as Executor of Ransom II. Gibbons, Deceased, Appel-
lant, Impleaded with Another.
1. Equity — Creditor's Action to Compel Executor to Sell Real
Estate under Power op Sale for Payment op Debts. Where the
personal estate of a decedent is insufficient to satisfy his debts a creditor
may maintain an action in equity to establish his claim and to compel an
executor having a testamentary power to sell designated real estate " for
the purpose of paying debts," to sell the same and apply the proceeds to
the extinguishment of the debt.
2. Acknowledgment by Executor Prevents Running op Statute
op Limitations. It is not only the right, but the duty of the executor to
discharge the debt, and his acknowledgment thereof, by making payments
thereon from time to time, prevents the running of the Statute of Limita-
tions, the principle of the rule that prevents an executor from reviving
a debt against the estate of his testator which is barred by the statute
having no application to a case where he performs his legal duty in keep-
ing it in force.
8. Former Adjudication Dismissing Proceeding for an Account-
ing Not a Bar. A former adjudication of the Surrogate's Court, the
only effect of which was to dismiss the creditor's petition for an account-
ing, containing the statement that the proceeding was "barred by the
Statute of Limitations," does not constitute a final adjudication upon
the validity of his claim and is not a bar to the maintenance of the
action.
4. Failure to Legally Serve Non-resident Devisee with Process
Fatal to Judgment. A devisee under the will, of the real estate
directed to be sold, having an interest therein subject to the exercise of
the power of sale, is a necessary party to such an action; and where the
devisee who was a non-resident was made a party defendant, but by
reason of a non-compliance with section 439 of the Code of Civil Pro,-
cedure was never legally served with process and did not appear, a judg-
ment in plaintiff's favor must be reversed.
5. Erroneous Direction op Sale bt Referee. A direction in the
judgment that the real estate be sold through a referee is improper in the
absence of an allegation or finding that the executor was unfit or without
capacity to execute the power of sale.
Holly v. Gibbons, 67 App. Div. 628, reversed.
(Argued November 17, 1903; decided December 1, 1903.)
1903.] Holly v. Gibbons. 521
N. Y. Rep.] Statement of case.
Appeal from a judgment of the Appellate Division of the
Supreme Court in the third judicial department, entered Jan-
nary 7, 1902, modifying and affirming as modified a judgment
in favor of plaintiff entered upon a decision of the court at
a Trial Term without a jury.
The plaintiff's testator was the administrator of Betsy Ann
Gibbons, who was the widow of Ransom H. Gibbons, and,
as a creditor of the latter's estate, upon a promissory note
given to his intestate by her husband in his life-time, for
the sum of $2,800, payable one year after dato and carry-
ing interest at five per cent, and in his capacity as admin-
istrator, he brought this action, with the object of procur-
ing the payment of the claim. He joined as defendants
with Edward Gibbons, the executor of Ransom II. Gibbons,
the said Edward Gibbons, individually, and Sally Maria Peck,
who were the only children of the testator, and the demand
of the complaint, variously, is that the executor render an
account of his proceedings; that the individual defendants
shall be jointly charged with the amount of the testator's
debt ; that the executor be compelled to exercise the power
of sale in the testator's will ; that the court shall order a sale
of the real estate left by the testator, and that the proceeds
of the sale shall be applied in payment of the debt. The
answer, admitting that the personal estate was exhausted and
is not available for the payment of debts, puts in issue the lia-
bility upon the note and sets up, in various ways, the bar of
the Statute of Limitations. The answer, also, pleads, in bar
of the action, a previous adjudication in the Surrogate's
Court. The plaintiff's testator recovered judgment; by
which it was, in substance, adjudged that the note was a valid
and existing claim against the estate of the testator ; that the
amount due upon it was recoverable against Edward Gibbons,
as executor and individually ; that a sale of the real estate of
the testator should be made, at public auction, under the
direction of a referee therein appointed for the purpose ; that
from the proceeds of such sale the debt should be paid and
that any deficiency should be made good by the defendant,
522 Holly v. Gibbons. [Dec ,
Statement of case. [Vol. 176.
Edward Gibbons, individually. Upon appeal to the Appellate
Division, in the third department, the judgment was modified
" by striking therefrom that part thereof relating to the col-
lection of any deficiency after the sale of the real estate from
Edward Gibbons, individually, and, as so modified, affirmed."
The defendant, Edward Gibbons, individually and as execu-
tor, appealed to this court. After the determination by the
Appellate Division, the original plaintiff died and the present
plaintiff and respondent, as his executrix, was substituted in
his place and stead by order.
Testator's will, after making provision for his wife during
her life, by the third clause, gave to his son Edward a certain
farm, called the " Ilnyck farm," " to have and hold forever,
unless said Edward shall die without legal issue and in that
case the same property to my daughter, Sally Maria, and her
heirs." By the fourth clause, he authorizes his executor to
sell a certain farm, called the " Jay Gibbons farm," " to the
best advantage for the purpose of paying debts and for the
interest of my daughter," and, further authorizing bis execu-
tor to sell the house and lot on which he resided, continues,
by saying, " and after the real estate is sold and the debts
paid and if there is not over $4,000, I give to my daughter
the said $4,000, but if there is over $4,000 I direct that my
son and daughter to each share alike in the overplus and in
case of my daughter's death to go to her heirs." He, then,
appoints his son Edward as the executor of his will. The
trial judge made findings ; in which he found that the testa-
tor paid the interest upon the note, which he had given to
his wife, down to the time of his death, in 1885 ; that his
executor acknowledged the validity of the note and paid the
interest thereon, until the death of the testator's widow, in
1893 ; that, when the original plaintiff, her administrator, pre-
sented the note to the executor, the latter admitted the validity
of the note, promised to pay the same and requested, rather
than to have a sale of the real estate, that it should remain as
it was ; that in such request the plaintiff acquiesced and that
the executor paid the interest upon the note clown to March,
1003.] Holly v. Gibbons. 523
N. Y. Rep.] Statement of case.
1897. He found that the testator left no personal property ;
except about two hundred dollars, which had been expended
in paying funeral expenses and some small debts of the estate ;
that the executor had sold the house and lot, in which the
testator resided and which were referred to in the fourth
clause of the will, and had applied the proceeds, in 1895,
upon the principal and interest of the note and that, in Sep-
tember, 1899, he informed the original plaintiff that he was
forbidden to make further payments upon the note and,
therefore, should decline to pay the same, or any part of
it. Thereupon, as it is further found, this original plain-
tiff instituted a proceeding before the surrogate of Albany
county, in which, as a creditor of Ransom Gibbons' estate, he
sought to compel the executor to account as such ; that the
executor, in his answer in that proceeding, denied that the
petitioner was a creditor and set up the bar of the Statute of
Limitations, whereupon the surrogate made a decree, adjudg-
ing as follows : " That more than six years and eighteen
months having elapsed since the appointment of said Edward
Gibbons, as executor, this proceeding to compel the executor
to account is barred by the Statute of Limitations," and order-
ing " that the petition should be dismissed." Upon these
facts the conclusions of law followed, upon which the judg-
ment was entered in favor of the plaintiff.
The further fact is to be noticed that Mrs. Peck, the
daughter of the testator and who was joined as a defendant,
did not appear in the action and that she was a non-resident
of the state, upon whom service of the summons and complaint
had been made without the state, pursuant to an order to that
effect.
Walter E. Ward for appellant. There is no law or prac-
tice in this state to support the judgment entered as to the
sale of the real estate. {Piatt v. Piatt, 105 N. Y. 488 ; Ilogan
v. Kavanaugh, 138 N. Y. 417; Long v. Long, 142 N. Y.
545.) There was no legal service of the summons upon the
defendant Sally Maria Peck, the court never obtained juris-
524 Holly v. Gibbons. [Dec.,
Points of counsel. [Vol. 176.
diction of her and the judgment is absolutely void as to her,
and consequently void as to the sale of the real estate. (Code
Civ. Pro. § 438 ; MacCrakin v. Flanagan, 127 N. Y. 493 ; 141
N. Y. 174 ; Orr v. Currie, 14 Misc. Rep. 74 ; Greeiibaum v.
Bwyer, 4 Civ. Pro. Eep. 276 ; Peck v. Cook, 41 Barb. 549.)
The judgment entered cannot be sustained against the defend-
ants Edward Gibbons and Sally Maria Peck individually as devi-
sees. (Code Civ. Pro. §§ 1837, 1860 ; Clift v. Moses, 116 N.
Y. 144.) The cause of action against the defendants as devi-
sees under the will, to charge them with the value of the
estate received by them individually, is barred by the six
years' Statute of Limitations, which began to run three years
after the granting of letters testamentary, or nine years in all.
{Adams v. Fassett, 149 N. Y. 61 ; Burnham v. Bwmham,
27 Misc. Rep. 106 ; Mead v. Jenkins, 95 N. Y. 31.) The
debt being barred by the Statute of Limitations as to the
devisees, the executor has no right to sell the real estate for
the payment of the debt. {Butler v. Johnson, 111 N. Y.
204.) The note was outlawed as to all parties long before the
commencement of this action. {Bah v. UnderJiill, 19 Misc.
Rep. 215 ; Bloodgood v. Brum, 8 K Y. 362 ; Schultz v.
Morette, 146 N. Y. 137; Willis v. Sharp, 115 N. Y. 396;
Piatt v. Piatt, 105 N. Y. 488.) The former adjudication in
the Surrogate's Court is a complete bar to the maintenance of
this action. (Pray v. liegeman, 98 N. Y. 351 ; Hyland v.
Baxter, 98 N. Y. 610 ; Matter of Benton, 103 K Y. 607 ;
Reich v. Cochran, 151 K Y. 122 ; Park Hill v. Herriot, 41
App. Div. 324 ; Nichols v. McLean, 101 N. Y. 526 ; Keller
v. Vil. of Mount Vernon, 23 App. Div. 46 ; Hollister v.
Abbott, 31 N. H. 442 ; Hudson v. Nashua, 62 N. H. 591 ;
Harris v. Harris, 36 Barb. 88.)
John IL Gleason for respondent. The claim in suit was
never barred by the Statute of Limitations. {McLaren, v.
McMartin, 36 N. Y. 88 ; Heath v. Grenncll, 61 Barb. 190 ;
Murdock v. Waterman, 145 N. Y. 55 ; Mack v. Anderson,
165 N. Y. 532; Matter of Kendrick, 107 N. Y. 108; Matter
1903.] Holly v. Gibbons. 525
N. Y. Hep.] Opiuion of the Court, per Gray, J.
of Miles, 170 N. Y. 75.) The action is properly brought and
can be maintained against Edward Gibbons alone, as the exec-
utor and individually as sole devisee of the deceased debtor.
(2 K. S. [9th ed.] 1807, § 96 ; Matter of Gantert, 136 K Y.
106 ; Haiyht v. Brisbin, 96 K Y. 132 ; Mancrief v. Ross,
50 N. Y. 436 ; Vonbqskerck v. Merrick, 65 Barb. 257 ; Stewart
v. Hamilton, 37 Hun, 19 ; Code Civ. Pro. §§ 1815, 1843-
1853, 1860, 2759, subd. 4 ; Cunningham v. Parker, 146 N.
Y. 29 ; Wood v. Wood, 26 Barb. 356 ; Be Crano v. Moore,
30 Misc. Rep. 303 ; Adams v. Fassett, 149 N. Y. 61 ; Cole v.
Tyler, 65 N. Y. 73.) The Surrogate's Court had no jurisdic-
tion to determine the petitioner's claim, and its decree dismiss-
ing the petition is not a bar to this action. (Code Civ. Pro.
§ 2722 ; Matter of Wagner, 119 N. Y. 28 ; Matter of Callahan,
152 N. Y. 320 ; Matter of Miles, 170 N. Y. 75 ; Matter of
Clauss, 16 App. Div. 34 ; Matter of Edmonds, 47 App. Div.
229 ; Matter ofKirby, 36 Misc. Rep. 312 ; Koehler v. Hughes,
148 K Y. 507 ; Rosenstein v. Fox, 150 N. Y. 354 ; Randall
v. JT. T. El. R. R. Co., 149 K Y. 211 ; Matter of Gregory,
21 K Y. S. R. 871; Matter of Sargent, 42 App. Div. 301.)
Sally Maria Peck has no interest, vested or contingent, either
in the land devised, or in that directed to be sold, and she is
not a necessary party to this action. (Stokes v. Weston, 142
N. Y. 433 ; Washbon v. Cope, 144 N. Y. 287 ; Nelson v. Rus-
sell, 135 N. Y. 137; Quackenboss v. ITingsland, 102 N. Y.
128 ; Van Derzee v. Slingerland, 103 N. Y. 47 ; Matter of
N. Y., Z. <& W. R. R. Co., 105 N. Y. 89 ; DeUfieU v. Bar-
low, 107 N. Y. 535 ; Salisbury v. Slade, 160 N. Y. 278 ;
Chamberlain v. Chamberlain, 43 N. Y. 432 ; Hauselt v. Patr
terson, 124 N. Y. 349.)
Gbay, J. The judgment, which the plaintiff now has, valid-
ates the claim against the testator's estate and authorizes the dis-
position of the real estate devised by the will, by a sale, for the
purpose of satisfying the amount found to be due. In so far
as the plaintiff seeks the equitable intervention of the court
to compel the exercise by the executor of the power of sale
526 Holly v. Gibbons. [Dec,
Opinion of the Court, per Gray, J. [Vol. 176.
contained in the will, the action is clearly maintainable;
assuming that the debt has been conclusively established.
The testator expressly empowered his executor to sell the
" Jay Gibbons farm," " for the purpose of paying debts and
for the interest of his daughter," in order that, the_ debts
being thus paid, the residue of the proceeds of sale of that
and of the other real estate mentioned in the clause might be
given to the latter. The power of sale thus given was impera-
tive and imposed a duty on the executor, the performance of
which might be compelled in equity for the benefit of the
creditors, or the daughter. (2 K. S. 734, sec. 96.) The debts
were not made a charge upon the testator's real estate ; but a
power to sell certain portions of it for their payment was
given, the execution of which in nowise depended upon the
will of the grantee of the power. Hence, the remedy of the
creditor, upon the failure to exercise the power of sale, was
by application to a court of equity. {Matter of Ga?itert, 136
N. Y. 106.) The sale of the real estate for the payment of
the debts is not, as it is argued, to be effected, solely, through
proceedings provided for in the Code of Civil Procedure.
Section 2759 provides that a decree directing the disposition
of real property, in a case where, ' under section 2750, the
creditor of the decedent has instituted a proceeding for that
purpose, can be made only where the property directed to be
disposed of is not subject to a valid power of sale for the pay-
ment of the debts. (Subdiv. 4.)
The action, therefore, was maintainable, if the claim of the
creditor was an enforceable one, and, as to that, the appellant
argues that the executor could not, by .the acknowledgment of
the debt, prevent the Statute of Limitations from running.
He argues, in effect, that the principle of the rule, which pre-
vents an executor from reviving a debt against the estate of
his testator which is barred by the statute, applies, equally, to
his right to keep a debt alive. I perceive no force in such an
argument ; nor am I aware of any authority in reported cases,
which would support it. The demand of the plaintiff was
upon an obligation of the testator, subsisting at the time of
1003.] Holly v. Gibbons. 527
N. Y. Rep.] Opinion of the Court, per Gray, J.
his death and for which his estate was concededly liable. It
was the right and it was the duty of the executor to discharge
the indebtedness upon the obligation, either from the personal
estate, or, if that was insufficient, by the exercise of the power
of sale given to him by the will. There is a plain distinction
between the right of an executor to revive an indebtedness
against his testator's estate, which had been extinguished by
law, end his right to acknowledge, and to keep in force, a sub-
sisting obligation, by making payments from time to time
upon the principal of the debt, or by way of keeping down
the interest. (McLaren v. McMartin^ 36 N. Y. 88 ; Butler
v. Johnson^ 111 id. 204.) In the one case he, in effect, creates
an indebtedness ; while, in the other, he is performing a moral
obligation and is executing a duty recognized by law.
It is, further, objected by the appellant that a former
adjudication in the Surrogate's Court was a bar to the main-
tenance of this action. In my opinion^ that is not the
effect of the surrogate's decree referred to. All that decree
effected was, as it states, the dismissal of the creditor's
petition. The statement, which it contained, that " the
proceeding to compel the executor to account is barred
by the statute of limitations," was not a final adjudica-
tion upon the validity of the petitioner's claim. It was the
conclusion of the surrogate that, by reason of the lapse of
time, the executor could not be compelled to account in such
a proceeding. Whether the surrogate was correct or not, in
that respect, is not material. He, in effect, nonsuited the
petitioner, by dismissing his petition, and, in so doing, has
complied with certain provisions of the Code of Civil Pro-
cedure. By section 1822,* it is provided that, where an exec-
utor rejects a claim against the estate, " unless a written con-
sent shall be tiled by the respective parties with the surrogate
that said claim may be heard and determined by him upon
the judicial settlement of the accounts of said executor,
* * * the claimant must commence an action for the
recovery thereof," etc. By section 2722, if a petition is pre-
sented to the Surrogate's Court by a creditor, praying for a
528 Holly v. Gibbons. [Dec.,
Opinion of the Court, per Gray, J. [Vol. 176.
decree directing the executor to pay his claim, it is provided
that the surrogate must dismiss the petition, " without preju-
dice to an action or an accounting," where the latter files a
written answer, setting forth facts, which show " that it is
doubtful whether the petitioner's claim is valid and legal and
denying its validity or legality." Obviously, if the proceed-
ing were one, in which the executor was called upon to render
his account by a creditor, the validity of whose claim is either
expressly denied, or is shown to be doubtful, the result must
be the same, as to the surrogate's jurisdiction. I do not think
we can say that the filing of a petition by a creditor, and of
an answer thereto by the executor denying the validity of a
claim, was equivalent to the filing of the written consent
required by the statute. The fact that the claim was disputed
deprived the surrogate of jurisdiction to determine its validity
and to decree its payment. (Matter of Callahan, 152 N. Y.
320.)
It is, further, argued that this action cannot be maintained
against the devisees individually. The order of the Appellate
Division struck out any recovery against the executor, indi-
vidually, of any deficiency judgment and there was no judg-
ment at all against Mrs. Peck. Whether the judgment is
maintainable for the sale of the real estate devised to Edward
Gibbons is somewhat doubtful ; inasmuch as the averments of
the complaint and the proofs do not seem in sufficient com-
pliance with the provisions of the Code with reference to an
action against devisees and Mrs. Peck was not brought into
the action. (Code, sees. 1843, 1846, 1849, 1851.) But, as the
judgment must be reversed and a new trial ordered, for the
failure to bring in Mrs. Peck, we will not discuss this question.
The serious feature of this case, and one which requires the
reversal of the judgment, is that Mrs. Peck, though made a
defendant by name, was never brought into the litigation by a
legal service upon her of the summons. The order for the
service of the summons upon her was not founded upon the
affidavit, which section 439 of the Code requires to be made.
Indeed, the respondent conceded, in open court,' that there
1903.] Holly v. Gibbons. 529
N. Y. Rep.] Opinion of the Court, per Gray, J.
was no such legal service ; but he says that Mrs. Peck has
u no interest, vested or contingent, in the land devised, or in
that directed to be sold, and that, therefore, she is not a neces-
sary party to the action." This contention seems rather extra-
ordinary, in view of the allegations of the complaint ; to the
effect, not only, that Mrs. Peck is a devisee under the will
and holds as such, but that the payments made by the executor
upon the note and the delay by him in the sale of the real
estate were with her knowledge and consent, and in view of the
findings, which recited the facts of a personal service upon her
of the summons and complaint and of her knowledge of, and
consent to, the executor's acts. If we might disregard these
matters, as not necessarily conclusive upon the respondent,
we, still, are confronted with the fact that Mrs. Peck did
have an interest in the estate of the testator and in the
enforcement of the power of sale contained in the will, which
made her a necessary party to the action; without whose
presence the court would acquire no jurisdiction to render
any decree, which would affect her legal, or equitable, inter-
ests. Under the third clause, by which the " Huyck farm "
was given to the testator's son, " unless he should die without
legal issue," in which case it was to go to his daughter, Mrs.
Peck, she took no interest; because the son survived the
testator and the estate had vested in him. Under the fourth
clause, however, which empowered the executor to sell the
" Jay Gibbons farm " and the residence, for the purpose of
paying debts and applying the surplus to the testator's
daughter, her interests are very clear and substantial. As
one of the two heirs at law of the testator, she had an interest
in such real estate ; which was subject, of course, to the exer-
cise of the power of sale. Having such, her interest in any
legal proceeding, wherein it was sought to compel a sale for
the purpose of paying claims against the testator's estate, was
very substantial. She was very much concerned, by reason
of her legal and equitable interests, that such claims should
be satisfactorily and legally established, as obligations of the
testator which were actually subsisting against his estate. It
34
530 Holly v. Gibbons. [Dec.,
Opinion of the Court, per Gray, J [Vol. 176.
cannot, truthfully, be said that Mrs. Peck had no interest,
which could be injuriously affected by the result of this liti-
gation, and, therefore, within those rules which govern the
judgment of a court of equity, she should have been brought
into the litigation. Courts of equity observe a fundamental
principle concerning parties, that all persons, who are inter-
ested, directly or indirectly, in the subject-matter and in the
relief to be granted by decree, should be brought into the
suit. When it appears that their rights might be affected
thereby, and they are capable of being made parties, a court
of equity should not proceed to decide the case without them.
(Story's Equity Jurisprudence, sec. 1526 ; Pomeroy's Equity
Jurisprudence, sec. 114.)
In the absence of Mrs. Peck as a party to the action, the
court did not obtain jurisdiction to render a judgment for the
sale of the testator's real estate.
It was, also, quite unnecessary to the judgment to direct a
sale of the real estate through a referee. I am not aware of
any authority in the law for such procedure. It not having
been charged, or found, that the executor was unfit, or without
capacity to execute the power of sale, the judgment of the
court should have directed him to effect the sale.
For the reasons I have given, I advise that the judgment
appealed from should be reversed and that a new trial should
be ordered, with costs to abide the event.
Haight, Vann, Cullen and Werner, JJ., concur ; Bart-
lett, J., votes for reversal on the ground that Mrs. Peck had
such an interest in the " Jay Gibbons farm " as rendered her
a necessary party defendant ; Parker, Ch. J., not sitting.
Judgment reversed, etc.
1903.] People v. Thames & Mersey M. Ins. Co. 531
N. Y. Rep.] Statement of case.
The People of the State of New York, Respondent, v.
The Thames and Mersey Marine Insurance Company,
Limited, Appellant.
Tax — Foreign Insurance Corporation — Franchise Tax upon
Fire and Marine Insurance Corporation — Effect of Chapter
118 of Laws of 1901. A foreign marine insurance company doing business
in this state must pay the annual tax of five-tenths of one per centum on
the gross amount of premiums received for business done within this
state during each calendar year, imposed by chapter 118 of the Laws of
1901, amending section 187 of the Tax Law (L. 1896, ch. 908, § 187), " in
addition to all other fees, licenses or taxes imposed by this or any other
law," and is no longer entitled to have deducted therefrom all other taxes
paid by the company, under the provisions of the Insurance Law (L.
1892, ch. 690, as amd. by L. 1898, ch. 725), providing that the superintend-
ent ofN insurance in collecting the tax of two per centum thereby imposed
upon the amount of all premiums upon insurance against marine risks
received by any foreign insurance company during the preceding calendar
year, shall deduct therefrom all other taxes paid by such corporation
under the laws of this state; since it is apparent from the former statute
that it was the purpose of the legislature to increase the franchise tax
imposed upon foreign insurance corporations to one per centum per
annum, which it did, in the case of all of such corporations except fire
and marine insurance corporations, by increasing the tax from' five-tenths
of one per centum to one per centum, but in the case of the latter cor-
porations it effected this purpose by providing that the tax of five-tenths
of one per centum per annum imposed upon such corporations should be
in addition to the taxes authorized by other statutes, and, therefore, the
provision of the Insurance Law providing for a deduction of such tax must
be deemed to have been repealed by implication by the statute in question.
People v. Thames & Mersey Marine Ins. Co., 85 App. Div. 623, affirmed.
(Argued November 20, 1903; decided December 1, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the third judicial department, entered
August 10, 1903, which affirmed a judgment in favor of
plaintiff entered upon a decision of the court at Special Term
sustaining a demurrer to the answer.
The nature of the action and the facts, so far as material,
are stated in the opinion.
James F. Tracey for appellant. The Franchise Tax Law
of 1901 does not repeal the clause directing the manner of
532 People v. Thames & Mersey M. Ins. Co. [Dec.,
Opinion of the Court, per Haioht, J. [Vol. 176.
ascertaining the gross premium tax on foreign marine insur-
ance companies. ( Wood v. Bd. of Suprs., 136 N. Y. 403 ;
Matter of Curser, 89 N. Y. 401 ; Cooley on Taxn. [2d ed.]
294; Black on Interp. Stat. 117, § 53 ; Hoey v. Gilroy, 129
N. Y. 132 ; Van Denburgh v. Vil. of Greenbush, 66 N. Y.
1 ; Casterton v. Town of Vienna, 163 K Y. 368 ; People v.
Jaehne, 103 N. Y. 182.) The construction of the contro-
verted clause in the Franchise Tax Act of 1901 assumed by
the respondent is not necessary, nor on analysis is it the pre-
ferable one. (Saunders v. Evans, 8 II. L. Cas. 721 ; Broom's
Leg. Maxims, *627.)
John Cunneen, Attorney-General, and George F. Slocum
for respondent. An analysis of the amendment of 1901
shows the clear legislative intent to increase the revenues by
increasing the tax upon insurance corporations, and as inci-
dental to that purpose to do away with all rebates other than
those expressly mentioned in the act. (Hackmann v. Pink-
ney, 81 N. Y. 211 ; People v. Jaehne, 103 N. Y. 182, 195.)
While it is true that repeals by implication are not favored, yet
where the provisions of two statutes are absolutely irrecon-
cilable the earlier must give way. (Lyddy v. Long Island
City, 104 K". Y. 218 ; Stack v. City of Brooklyn, 150 N. Y.
335 ; Potter's Dwarris on Stat. 155.)
Hajght, J. This action was brought to recover the amount
of the annual tax payable to the superintendent of insurance
by the defendant, a foreign marine insurance company, pur-
suant to section thirty-four of the Insurance Law, amounting
to the sum of $8,334.24.
The defendant, in its answer, alleged that it had been
assessed a franchise tax, pursuant to section one hundred and
eighty-seven of the Tax Law, of $1,191.72, which it had paid
to the comptroller, and demanded that this amount should be
deducted from the amount claimed by the superintendent of
insurance. The defendant further alleged that it had ten-
dered payment of the balance due the superintendent of
insurance after the deduction of the franchise tax as aforesaid.
1903.] People v. Thames & Mersey M. Ins. Co. 533
N. Y. Rep.] Opinion of the Court, per Haight, J.
The demurrer interposed was to the effect that the partial
defense alleged in the answer was insufficient in law. The
demurrer was sustained and final judgment has been entered
in favor of the state. The statute under which this contro-
versy arises, so far as is material to the question involved, is
as follows :
" The agent of every corporation, association or individual
not incorporated by the laws of this state to effect insurances
against marine risks, shall annually, on or before the first day
of February, pay to the superintendent of insurance a tax
of two per centum upon the amount of all premiums upon
insurances against marine risks which have been received by
such agent or any person for him or have been agreed to be
paid for any such insurance effected or agreed to be effected
or procured by him, within this state, for the year ending
the thirty -first day of December preceding ; but in collecting
such tax from a foreign marine insurance corporation, the
superintendent of insurance shall deduct therefrom all other
taxes paid by such corporation under tJie laws of this state"
(Insurance Law, § 34, being chapter 690 of the Laws of 1892,
as amended by chapter 725 of the Laws of 1893.) By chapter
542 of the Laws of 1880, as amended by chapter 361 of the
Laws of 1881, there was imposed a franchise tax on every
corporation or association organized under the laws of other
states or countries doing business in this state, and these pro-
visions were subsequently incorporated into chapter 908 of the
Laws of 1896, section 187. Under these provisions the
defendant had the right to have the amount of the franchise
tax assessed to and paid by it deducted from the amount
which was payable to the superintendent of insurance, but, in
the year 1901, by chapter 118, the provisions of section 187 of
the Tax Law were amended, and, so far as material, provide
as follows : " An annual state tax for the privilege of exercis-
ing corporate franchises or for carrying on business in their
corporate or organized capacity within this state equal to one
per centum on the gross amount of premiums received during
the preceding calendar year for business done in this state,
534 People v. Thames & Mersey M. Ins. Co. [Dec,
Opinion of the Court, per Haight, J. [Vol. 176.
whether such premiums were in the form of money, notes,
credits, or any other substitute for money, shall be paid
annually into the treasury of the state, on or before the first
day of June, by the following corporation? :
" 1. Every domestic insurance corporation, incorporated,
organized or formed under, by, or pursuant to a general or
special law ;
" 2. Every insurance corporation, incorporated, orgauized or
formed under, by, or pursuant to the laws of any other state
of the United States, and doing business in this state, except
a corporation doing a fire insurance business or a marine
insurance business ;
"3. Every insurance corporation, incorporated, organized
or formed under, by, or pursuant to the laws of any 6tate
without the United States, or of any foreign country, except
such a corporation doing a life, health or casualty insurance
business, and doing business in this state ; but the tax on gross
premiums of a corporation so incorporated, organized or
formed and doing a fire or marine insurance business within
the state shall be equal to five-tenths of one per centum.
* * * The taxes imposed by this section slidLl be in addi-
tion to all other fees, licenses or taxes imposed by this or any
other lawP
The provisions of this amendment increased the franchise
tax as to domestic and foreign insurance corporations, with
the exceptions specified in the act, but as to foreign corpora-
tions organized for fire and marine insurance their franchise
tax remained unchanged at five-tenths of one per centum.
It is thus apparent that the legislative purpose was to effect
a general increase in the franchise tax upon insurance cor-
porations which had theretofore been taxable, and this was
accomplished by increasing the tax from five-tenths of one per
centum to one per centum. True, foreign corporations doing
a marine insurance business did not, in terms, have their taxes
increased, but instead thereof we have the provision that the
tax imposed by this section shall be in addition to those
imposed by any other law. Under the law as it had thereto*
1903.] Trunxey v. Van Sant. 535
N. Y. Rep.] Statement of case.
fore existed the defendant corporation, as we have seen, was
assessed a franchise tax of five-tenths of one per centum,
which it deducted from the two per centum tax payable,
under the Insurance Law, to the superintendent of insurance.
It, therefore, was required to pay a tax of two per centum
upon the amount of all its premiums upon insurance collected
or agreed to be paid in this state. By making the five-tenths
of one per centum in addition to the tax authorized by other
statutes, the effect was to increase the defendant's tax in the
amount of one-half of one per centum, which is the amount
that other corporations, domestic and foreign, have had their
taxes increased by the provisions of this act. While we recog-
nize the correctness of the rule invoked by the appellant with
reference to the interpretation of statutes, and that repeals by
implication are not favored in the law, yet the legislative
intent in this case is so clearly apparent that we think the pro-
vision of the Insurance Law providing for a deduction of such
taxes must be deemed to have been repealed by implication
by the latter statute, and that the franchise tax imposed upon
the defendant was intended to be " in addition to all other
fees, licenses or taxes imposed by this or any other law."
The judgment should be affirmed, with costs.
Parker, Ch. J., Gray, Bartlktt, Vann, Cullen and
Werner, JJ., concur.
Judgment affirmed.
Agnes G. Trcnkey, Respondent, v. Jane B. Van Sant et
al.,' Individually and as Executors of Sarah M. Berlin,
Deceased, Appellants, and Edwin L. Garvin, et al.,
Respondents.
Will— Construction of Clause Appointino Trustees "Residu-
ary Legatees" — Residuary Estate Resulting from Invalid Trust
•Passes to Such Residuary Legatees. Where a testatrix gave and
devised all of her property to three persons, named in her will, " to have
and to hold the same to themselves, their heirs and assigns forever, upon
the uses and trusts following : To pay all my debts and pay such propor-
tions of said estate to such persons as they may ascertain and a majority
536 Trtjnkey v. Van Sant. [Dec,
Statement of case. [Vol. 176.
shall agree to have been my expressed "wish, or as I may hereafter for-
mally designate, and I hereby nominate and constitute and appoint my
said trustees residuary legatees of my estate/' the use of the words "said
trustees" in the residuary clause is the equivalent of specifying by name
the residuary legatees who had already been designated by their several
names; andv the second trust being void for indeftniteness, the residue of
the estate, after the payment of debts as directed by the first trust, is a
definite and ascertainable quantity, the determination of which is not
dependent upon the validity or invalidity of the second trust, and passes
to the residuary legatees;' since it is apparent from the language used by
testatrix that she intended to give her estate, after the execution of
the two trusts, to the three persons named as residuary legatees, their
heirs and assigns forever, so that the will stands, with the invalid trust
eliminated, precisely as though the testatrix had said, I give to these three
persons all my property upon the trust to pay my debts and the residue to
them, their heirs and assigns forever.
Trunkey v. Van Sant, 83 App. Div. 272, reversed.
(Argued November 19, 1903; decided December 1, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered June
4, 1903, reversing a judgment in favor of appellants herein
entered upon a dismissal of the complaint by the court on
trial at Special Term.
The nature of the action and the facts, so far as material,
are stated in the opinion.
Franklin Pierce and William Arrowsmith for appellants.
The words " to have and to hold the same to themselves, their
heirs and assigns forever," even though followed by the words
" upon the uses and trusts," was a gift of the entire estate to the
three persons named. (3 Redf. on Wills [4th ed.], 599 ; Trash
v. Sturgis, 170 K Y. 491 ; Lewin on Trusts [10th ed.], 161 ;
Perry on Trusts, § 158 ; Dawson v. Clcvrke, 15 Ves. 409 ; 18
Ves. 253 ; Wood v. Cox, 2 Myl. & Cr. 684 ; Fenton v. Ilan-
kins, 9 Wkly. Rep. 300; Clay v. Wood, 153 K T. 134;
Morton v. Woodbury, 153 N. Y. 243 ; Howard v. Carru&i,
109 U. S. 375 ; Foose v. Whitmore, 82 N. Y. 405 ; Clarke v.
Leupp, 88 N. Y. 228 ; Campbell v. Beumont, 91 N. Y. 464.)
The words " I hereby nominate, constitute and appoint my
said trustees residuary legatees of my estate " are fit and apt
1903.] Trunkey v. Van Sant. 537
N. Y. Rep.] Points of counsel.
words to vest in them absolutely the whole residuary estate.
(Spark v. Purnell, Hobart, 75 ; Parker v. Nickson, 1 De G.,
J. & S. 177; 2 Redf. on Wills [2d ed.], 316; Laing v. Bar-
her, 119 Mass. 523 ; Hughes v. Pritchard, L. R. [16 Ch.
Div.] 24 ; Jackson v. Kelly, 2 Ves. Sr. 285 ; Morton v.
Woodbury, 153 NT. 243 ; Wyman v. Woodbury, 86 Hun, 282.)
The holding of the Appellate Division that the trustees were
to take the balance of the property, not as individuals, but as
trustees, for the purpose of applying it to or satisfying another
trust which is not disclosed and cannot be ascertained, has no
foundation. The words " said trustees " are words of descrip-
tion and clearly mean Jane B. Van Sant, Julia D. Lawrence
and Louis Faugeres Bishop. (Hoe v. Vingut, 117 N. Y. 204 J
Dawson v. Clarke, 18 Ves. 253 ; Matte?* of Logan, 131 N.
Y. 460 ; Gelston v. Shields, 16 Hun, 143 ; Walter v. Ham,
68 App. Div. 381; Forster v. Winfield, 142 N. Y. 327;
Marks v. Ilalligan, 61 App. Div. 179 ; Matter of Russell,
168 N. Y. 175 ; N. T. L. Ins. Co. v. Yiele, 161 N. Y. 11 ;
Hull v. Pearson, 36 App. Div. 228.) The words " I hereby
nominate and constitute and appoint my said trustees residuary
legatees of my estate " is a general residuary clause making
the appellants general residuary legatees, and vest in the
appellants as against the respondents any void legacies, if any
such can be regarded as existing, and the whole residuary
estate of every name and nature. (Schouler on Wills [2d ed.],
§ 490 ; Vernon v. Vernon, 53 N. Y. 352 ; Floyd v. Carow,
88 N. Y. 560 ; Wager v. Wager, 96 N. Y. 164 ; Henderson
v. Henderson, 113 N. Y. 16 ; Hiker v. Cornwell, 113 N. Y.
115 ; Lamb v. Lamb, 131 N. Y. 227 ; Schult v. Moll, 132 N.
Y. 122 ; Johnson v. Brasington, 156 N. Y. 181 ; Meeks v.
Meeks, 161 N. Y. 66 ; Lyman v. Lyman, 22 Hun, 263.)
Richard B. Aldcroftt, Jr., and Edwin Louis Garvin for
plaintiff, respondent. No valid trust or power is created
except to pay the debts. (Tilden v. Green, 130 N. Y. 29;
Levy v. Levy, 33 N. Y. 107 ; Read v. Williams, 125 N. Y.
560 ; Prichard v. Thompson, 95 N. Y. 76.) The expressed
538 Trunkey v. Van Sant. [Dec.
»
Points of counsel. [Vol. 176.
intent of the testatrix is that her whole estate shall go to the
trustees for the purposes of the valid and invalid trusts. (Til-
den v. Green, 130 N. T. 29 ; Van Ostrand v. Moore, 52 N.
T. 18 ; Fairchild v. Edson, 77 Hun, 298 ; Clements v. Bab-
cock, 26 Misc. Kep. 90 ; Edson v. Barto, 10 App. Div. 104 ;
154 K Y. 199 ; Wood v. Mitcham, 92 N. Y. 379.) The
so-called residuary clause does not give the executors a bene-
ficial interest in the estate. (2 Jarman on Wills [6th ed.], 657 ;
Trethewy v. Heiyar, L. R. [4 Ch. Div.] 53 ; Stackpoole v.
Howell, 14 Ves. 417 ; Pratt v. Sladden, 14 Ves. 193 ; Gibbs
v. Rumaly, 2 V. & B. 294 ; Seley v. Wood, 10 Ves. 71 ;
Abbott v. Abbott, 6 Ves. 343 ; Forster v. Winfield, 142 N. Y.
327; Morton v. Woodbury, 153 N. Y. 250.) The residue
being uncertain and indeterminable, the so-called residuary
clause is invalid for that reason also. (Beekman v. Bonsor,
23 K Y. 299 ; Kerr v. Dougherty, 79 K Y. 328 ; Booth v.
Baptist Church, 126 N. Y. 245.) The words uto have and
to hold the same to themselves, their heirs and assigns forever
upon the uses and trusts following " are words importing a
trust estate only. (Southouse v. Bate, 2 V. & B. 396 ; King
v. Dennison, 1 V. & B. 260.)
Samuel S. Mehard and Charles W. McCandless for defend-
ants, respondents. The appellants' contention that the words
" to have and to hold the same to themselves, their heirs and
assigns forever upon the uses and trusts following," etc., was
a gift of the entire estate to the appellants, is founded upon a
false premise. (Dawson v. Clark, 15 Ves. 409; Bradstreet
v. Clark, 12 Wend. 602 ; Griffen v. Ford, 14 K Y. Super.
Ct. 123 ; Trustees v. Kellogg, 16 K Y. 83 ; Van Vechten v.
Keator, 63 K Y. 52 ; Shephard v. Gassner, 41 Hun, 326 ;
Matter of Logan, 131 N. Y. 456.) The true interpretation
of the testatrix's intent, as expressed, is that she intended the
trustees after paying proportions, to devote the residue to
another trust, and the trust of the residue fails for uncer-
tainty. (Read v. Williams, 125 N. Y. 560, 568; Prichard
v. Thompson, 95 N. Y. 76 ; PeopU v. Powers, 147 N. Y.
1903.] Trunkey v. Van Sant. 539
N. Y. Rep.] Opinion of the Court, per Werner, J.
104 ; Levy v. Levy, 33 N. Y. 97 ; Tilden v. Green, 130 N.
Y. 29; Holland v. Alcock, 108 N. Y. 312; Nichols v.
.4&m, 130 Mass. 211 ; Briggs v. Penny, 3 MacN. & G. 149 ;
Schmucker v. iforf, 61 Mo. 595.) Even if it be admitted
that the testatrix intended that the trustees after paying
proportions should take the residue as individuals, such an
interpretation makes the residuary clause invalid. (Beeh-
man r. Bonsor, 23 N. Y. 299; Limbrey v. Gurr, 6 Madh
dox, 151 ; Burnett v. Burnett, 30 N. J. Eq. 595 ; Skrym-
sher v. Northcope, 1 Swan. 570 ; Green v. Pertwel, 5 Have.
249 ; Loyd v. Loyd, 4 Beav. 231 ; Floyd v. Baker, 1 Paige,
480; Howland v. Clendin, 134 N. Y. 305; Theobald on
Wills, 188 ; Hawkins on Wills, 43 ; Wms. on Ex. 1461 ; 1 Jar-
man on Wills, 613, 719 ; Kerr v. Dougherty, 79 N. Y. 346.)
The interpretation that the part to pay proportions being void,
the trust ceases upon the payment of the debts, and the
trustees take the entire estate free of the trust, is untenable.
(Roosevelt v. Thul, 1 Johns. Ch. 220 ; Home v. Van Schaick,
3 N. Y. 538 ; Law v. Lord Stanhope, 6 T. R. 352 ; Phillips
v. Garth, 3 Bro. 68 ; Buck v. Norton, Bos. & Pull. 57 ;
Smith v. Butcher, 10 C. B. 113 ; Matter of Trenken, 131 N.
Y. 391 ; Goebel v. Wolf, 113 N. Y. 405 ; 2 Jarman on Wills,
842 ; Morrison v. Tinley, 143 Penn. St. 540 ; Heilman v.
Heibnan, 129 Ind. 59.)
Werner, J. This is a contest between heirs at law and
legatees over the construction of a will. On the 28th day of
May, 1902, Sarah M. Berlin died, leaving a last will dated
May 19th, 1902, in thfe following, form : " Being of feeble
health, but of sound mind, at the time of making and pub-
lishing this, my last Will and Testament, I give and devise all
my estate, real and personal, whereof I may died seized or
possessed, to Mrs. Jane B. Van Sant, of Philadelphia ; Mrs.
Julia D. Lawrence, of New York City, and Louis Faugeres
Bishop, of the same place, to have and to hold the same to
themselves, their heirs and assigns forever, upon the uses and
trust following : To pay all my debts and pay such propor-
540 Trunkey v. Van Sant. [Dec.,
Opinion Of the Court, per Werner, J. [Vol. 176.
tions of said estate to such persons as they may ascertain and
a majority shall agree to have been my expressed wish, or as
I may hereafter formally designate, and I hereby nominate
and constitute and appoint my said trustees residuary legatees
of my estate, and I hereby nominate, constitute and appoint
said trustees Mrs. Jane B. Van Sant, Mrs. Julia D. Lawrence
and Louis Faugeres Bishop, Executors of my last Will and
Testament."
The only surviving heirs at law and next of kin of the tes-
tatrix are the plaintiff and the defendants Garvin, who were
her cousins. The defendant Van Sant was a stepdaughter of
the testatrix; the defendant Lawrence had been her close
friend for many years and the defendant Bishop had been her
physician and was a distant relative. It is conceded that the
trust to pay debts is valid ; that the direction to pay and dis-
tribute such proportions of the estate to such persons as a
majority of the trustees should ascertain and agree to have
been the expressed wish of the testatrix is void for indefinite-
ness, and the issue is, therefore, narrowed to the single ques-
tion whether the trustees named in the will take as legatees
under the residuary clause, or whether the residuum after the
payment of the debts passes to the next of kin.
The Supreme Court at Special Term held that after the
cessation of the trust for the payment of debts the estate
passed to the residuary legatees. At the Appellate Division a
different conclusion was reached, and the next of kin were
held to be entitled to the residue of the estate, upon the
theory that the second and third provisions of the will are
inseparable and that the conceded invalidity of the one inevi-
tably establishes the invalidity of the other.
The cases of Beekman v. Bonsor (23 N. T. 299) and Kerr
v. Dougherty (79 N. Y. 328) are cited in support of this con-
clusion, but we think neither of them is a controlling author-
ity in the case at bar. In the Beekman case the testator's
will, after having disposed of various specific legacies, con-
tained a provision that out of the residue his executors should
establish a medical dispensary, if they should have sufficient
1903.] Trunkey v. Van Saht. 541
N. Y. Rep.] Opinion of the Court, per Werner, J.
funds, but there was no specification of the amount to be
expended for that purpose. This was followed by a direction
that if there should be any overplus the executors might,
within fifteen years, give it to any other charitable society or
societies for the relief of the comfortless and indigent whom
they might select. In discussing these two provisions of the
will the learned judge who wrote for this court said : " Now
we have seen that the sum which the testator intended to give
for a dispensary was wholly uncertain in amount and that the
bequest was void on that and other grounds. As that portion
of the residuum must go to the next of kin as undisposed of,
the final gift of the remainder involves precisely the same
uncertainty, and is void for the same reason. In order to
ascertain the amount of this gift (the final residue), the sum
intended to be previously appropriated out of the whole
residue must first be known. But, as this cannot be known,
the ultimate bequest falls to the ground also."
This argument, as applied to the facts of that case, was
strictly logical, because the court was dealing with the residue
of a residue that was indefinite and unascertainable ; but the
decision of the court was not based on that sole ground, for
in a following paragraph of the opinion it was held that the
final bequest was also void, because it was 60 indefinite that
its amount and purpose were incapable of being ascertained.
In the Kerr Cane (supra) one of the questions involved also
arose over the residue of a residue. There the testator made
certain specific bequests, some of which were to various relig-
ious, educational and charitable institutions. To the wife of
the testator was bequeathed during her life ^lie net income of
the estate after the payment of the specific legacies, and after
her death the principal left of the estate was bequeathed to
some of the institutions named in the specific bequests. The
specific bequests to religious, educational and charitable insti-
tutions were declared void, and thus the question arose
whether the amounts of the several void bequests passed into
the residuum of the estate, or were to be distributed as in cases
of intestacy. This court held that the sums attempted to be
542 Trunkey v. Van Sant. [Dec,
Opinion of the Court, per Werner, J. [Vol. 176.
bequeathed by the void legacies went to the widow and next
of kin as undisposed of by the will, because the wife's life
estate was expressly limited to that portion of the estate
remaining after the payment of the specific legacies, and the
residuary bequests, which were not to take effect until the
wife's death, were undisposed of during the period covered
by her life, and after her death were good for only one-half
their amount under the provisions of ch. 360, L. 1860. In
that case the court was dealing with two residues, one of
which was limited upon the other, and neither of which
included the amounts attempted to be bequeathed by the void
legacies. The residue, of which the testator's wife was to have
the life use, was expressly limited to that portion of the estate
remaining after the payment of the specific legacies. The
final residuary legacies were not to take effect until the wife's
death and, like the latter's life estate, related to the residue of
the estate which should remain after the payment of the
specific legacies. The failure of the specific legacies, there-
fore, created a second residue for which no provision was made
in the will, and, hence, it devolved as in cases of intestacy.
In the case at bar we have a radically different condition
than that which existed in either of the two cases above
referred to. Here the conceded invalidity of the second clause
of the will reduces the residuum to a definite and ascertain-
able quantity, unless, as held below, all the provisions of the
will are so inseparable that each is dependent upon the other.
As we read the will there is no such connection between its
several parts as to make the invalidity of one determinative of
all. The first, which contains the direction to pay debts, is
concededly good. The second, which directs the payment of
indefinite amounts to undesignated beneficiaries, is clearly
invalid. The validity of the third, which nominates as resid-
uary legatees the designated trustees of the testatrix, depends
upon the intention of the latter, wfrich is to be derived from
the context of the whole will. It is to be noted that, although
the estate is given to the three persons named in the will upon
the trusts therein named, it is also given to them, their heirs
1903.] Trcnkey v. Van Sant. 543
N. Y. Rep.] Opinion of the Court, per Wernek, J.
and assigns forever. While these latter words must undoubt-
edly yield to a clear, positive and valid creation of a trust or
of a limited estate, it is equally true that they will be given
great weight and cogency when the language relied upon to
import a trust or a limited estate is uncertain or ambiguous.
(Clay v. Wood, 153 N. Y. 134.)
The only two trusts specified in the will are (1) the trust to
pay debts, and (2) the trust to "pay such proportions of my
said estate to such persons as they (trustees) may ascertain and
a majority shall agree to have been my expressed wish or as I
may hereafter formally designate." Immediately following
the declarations of these two trusts the testatrix goes on to say,
"and I hereby nominate, constitute and appoint my said
trustees residuary legatees of my estate." In Morton v.
Woodbury (153 N. Y. 251) the language of the testatrix was
" I hereby appoint E. C. W. my legatee and give to her all
not before specified in this," and it was held to be sufficient to
pass the residue of the estate as effectually as though more
formal words had been employed. The court below seemed
to think the use of the words "my said trustees" in the
residuary clause of the will indicated an intention to create an
undisclosed and nameless third trust, to satisfy which the
residuary legacy was created. We think the use of the words
" said trustees " in the residuary clause are the equivalent of
specifying by name the residuary legatees who had already
been designated by their several names in the opening clause
of the will, and that it refers to them as trustees of the pre-
viously declared trusts, rather than as trustees of some imagi-
nary trust which is to be added to the end of the will by
judicial construction.
In the light of these observations upon the unscientific
phraseology of the will, let us look for the intention of the
testatrix which, in the language of Chief Justice Marshall, is
the " polar star " of testamentary construction. The opening
and the closing words of the will serve to clearly indicate an
intention to bequeath substantially the whole of the estate to
Jane B. Van Sant, Julia D. Lawrence and Louis F. Bishop.
544 Trunkey v. Van Sant. [Dec, 1903.]
Opinion of the Court, per Werneb, J. [Vol. 176, N. Y. Rep.]
This, as we have said, is shown by the use of the words
" Their heirs and assigns forever" before the words "upon
the uses and trust following," and is emphasized by the fact
that the only trusts thereafter named are to pay debts, and to
distribute unspecified portions of the estate to unnamed per-
sons. If the testatrix had intended that after payment of
her debts the second trust should absorb all, or the greater
portion, of her estate, she would, presumably, have employed
more specific directions concerning it, or at least have expressed
some limitation as to the residuum. In the absence of these
things the probabilities strongly support the contention of the
residuary legatees, that the real and substantial part of this
considerable estate was intended to go to them.
But the result does not depend upon this last conclusion.
If the second trust were valid, the residue of the estate,
whether great or small, would go to the residuary legatees.
The second trust was not to be carved out of a residue as in
the Beekman and Kerr cases, above cited. Here there was
to be no residue until the two trusts had been fulfilled. The
residue then remaining would have been definite and ascer-
tainable ; not the unascertainable residue of a residue, but a
sum capable of exact computation. Has the failure of the
second trust complicated conditions? This question carries
its own answer. As the will now stands, it is precisely as
though the testatrix had said I give to these three persons all
my property upon the trust to pay my debts and the residue
to them, their heirs and assigns forever. The diversity in
wills is as great as the difference in individuals. Authorities
are, therefore, seldom of value or assistance except as they treat
of similar cases or bear upon the general rules of construction.
Without further discussion of the cases cited in the briefs
of counsel we conclude that the order of the Appellate Division
must be reversed, and the judgment entered upon the decision
of the Special Term must be affirmed, with costs.
Parker, Ch. J., Gray, Bartlett, Haight, Vann and Cul-
len, JJ., concur.
Order reversed, etc.
MEMORANDA
OF
Decisions Rendered During the Period Embraced in
this Volume.
De Witt C. Becker et al., as Surviving Partners of the Firm
of David Bradt, Becker & Co., Appellants, v. John
Krank et al., Respondents.
Becker v. Krank, 75 App. Div. 191, affirmed.
< Argued June 12, 1908; decided October 6, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the third judicial department, entered July
14, 1902, upon an order reversing a judgment in favor of
plaintiffs entered upon a verdict directed by the court and
granting a new trial.
John A. Delehcmty for appellants.
JZ. J. Cooper and Frank Cooper for respondents.
Judgment affirmed and judgment absolute ordered for
defendants on the stipulation, with costs ; no opinion.
Concur: Parker, Ch. J., Gray, O'Brien, Bartlett,
Haight, Martin and Vann, JJ.
Charles D. Marshall, as Trustee of Certain Trusts Created
by Heman B. Potter, Deceased, Respondent, v. The City
of Buffalo, Appellant.
MariJiall v. City of Buffalo, 08 App. Div. 601, affirmed.
(Argued June 22, 1903; decided October 6, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
August 14, 1901, sustaining plaintiff's exceptions ordered to
35
546 MEMOKANDA.
be heard in the first instance by the Appellate Division and
granting a motion for a new trial.
Edward Z. Jung and Charles Z. Fddman for appellant.
Adolvh IiebadowioY respondent.
Order affirmed and judgment absolute ordered for plaintiff
on the stipulation, with costs ; no opinion.
Concur : Parker, Ch. J., O'Brien, Bartlett, Vann, Cul-
len and Werner, JJ. Absent : Martin, J.
Carl Standtke, Appellant, v. The Swits Conde Company,
Respondent.
Standtke v. The Swits Conde Company, 64 App. Div. 625, affirmed.
(Argued June 22, 1903; decided October 6, 1903.) '
Appeal from a judgment of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
October 22, 1901, affirming a judgment in favor of defendant
entered upon a verdict directed by the court.
D. P. Morehouse and L. C. Roxoe for appellant.
Elisha B. Powell for respondent.
Judgment affirmed, with costs; no opinion.
Concur : Parker, Ch. J., O'Brien, Bartlett, Vann, Cul-
len and Werner, JJ. Absent : Martin, J.
Central Trust Company of New York, Respondent, v.
New York and Westchester Water Company et al.}
Appellants.
Central Trust Co. of JV. T. v. N. Y. <fc Westchester Water Co., 68 App.
Div. 640, affirmed.
(Argued June 22, 1903; decided October 6, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the second judicial department, entered
MEMORANDA. 547
January 29, 1902, affirming a judgment in favor of plaintiff
entered upon a decision of the court on trial ac Special Term.
William Z. Snyder, Arthur J. Baldwin, Leonard D,
Baldwin and Henry L. Rupert for appellants.
Arthur JL Van Brunt for respondent.
Judgment affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., O'Brien, Bartlett, Yann, Ccl-
len and Werner, JJ. Absent : Martin, J.
In the Matter of the Estate of Ellis H. Elias, Deceased.
William M. Elias et al., Appellants ; Maggie Lewis et al.,
Respondents.
Matter of Elias, 60 App. Div. 630, appeal dismissed.
(Argued June 28, 1903; decided October 6f 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered May
7, 1901, which affirmed an order of the New York County
Surrogate's Court denying a motion to vacate a sale by the
public administrator of New York county of certain assets of
the estate of Ellis II. Elias, deceased.
Franklin Bien for appellants.
Frederick B. Woodruff, William iT. Cohen, Porte V.
Ransom and Frank \\\ Arnold for respondents.
Appeal dismissed, with costs ; no opinion.
Concur: Parker, Ch. J., O'Brien, Bartlett, Yann, Cul-
len and Werner, J J. Absent : Martin, J.
A. B. Farquhar Company, Limited, Respondent, v. Monroe
Truesdell, Appellant.
A. B. Farqaliar Co., Limited, v. Truesdell, 66 App. Div. 616, affirmed.
(Argued June 23, 1903; decided October 6, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the third judicial department, entered
548 MEMOKANDA.
November 19, 1901, affirming a final judgment in favor of
plaintiff, entered upon failure to comply with the terms of
an interlocutory judgment entered upon a decision of the
court at a Trial Term, without a jury, overruling a demurrer
to the complaint.
Nelson Smith and Jesse W. Olney for appellant
F. II. Osbom for respondent.
Judgment affirmed, with costs ; no opinion.
Concur : Parker, Ch. J., O'Brien, Bartlett, Vann and
Werner, J J. Not voting : ' Cullen, J. Absent : Martin, J.
The People of the State of New York, Respondent, i>.
Charles F. Filkin, Appellant.
People v. Filkin, 83 App. Div. 589, affirmed.
(Argued June 28, 1903; decided October 6, 1903.
Appeal from an order of the Appellate Division of the
Supreme Court in the fourth judicial department, made May
5, 1903, which affirmed a judgment of the Cayuga County
Court, rendered upon a verdict convicting the defendant of
the crime of forgery in the first degree.
John D. Teller for appellant.
Harry T. Dayton, District Attorney {Albert IT. Clark of
counsel), for respondent.
Judgment of conviction affirmed on opinion of Hisoock, J.,
below.
Concur: Parker, Ch. J., O'Brien, Bartlett, Vann, Cul-
len and Werner, J J. Absent : Martin, J.
Charles Strucks, Eespondent, v. Anna Corning, Appellant,
St)~uck* v. Corning, 68 App. Div. 650, affirmed.
(Submitted June 23, 1008; decided October 6, 1003.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
MEMORANDA. 549
January 29, 1902, affirming a judgment in favor of plaintiff
entered upon a verdict and an order denying a motion for a
new trial.
John Van Voorhis and Browne <& Poole for appellant.
George D. Heed for respondent.
Judgment affirmed, with costs ; no opinion.
Concur : Parker, Oh. J., O'Brien, Bartlett Vann, Cul-
len and Werner, J J. Absent : Martin, J.
George L. Venner, Appellant, v. Farmers' Loan and Trust
Company, Eespondent.
Venner v. Farmer? Loan <fc Trust Co., 54 App. Div. 271, affirmed.
(Argued June 23, 1903; decided October 6, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Oourt in the first judicial department, entered
November 28, 1900, affirming a judgment in favor of defend-
ant entered upon a dismissal of the complaint by the court on
trial at Special Term.
George II. Teaman for appellant.
David McClure for respondent.
Judgment affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., O'Brien, Bartlett, Vann, Ccl-
len and Werner, J J. Absent : Martin, J.
Mary Shelderberg, Appellant, v. The Village of Tona-
wanda, Respondent.
Shelderberg v. Village of Tonawanda, 70 App. Div. 623, affirmed.
(Argued June 24, 1903; decided October 6, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
550 MEMORANDA.
April 18, 1902, affirming a judgment in favor of defendant
entered upon a dismissal of the complaint by the court at a
Trial Term and an order denying a motion for a new trial.
Norman D. Fish for appellant.
W. B. Sh?i807i for respondent.
Judgment affirmed, with costs ; no opinion.
Concur : Parker, Ch. J., O'Brien, Bartlett, Vann, Cul-
len and Werner, J J. Absent : Martin, J.
Elton J. Ross, Respondent, v. John Kino et al., as Receivers
of the New York, Lake Erie and Western Railroad
Company, Appellants.
R<m v. King, 66 App. Div. 617, affirmed.
(Argued June 24, 1903; decided October 6, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the third judicial department, entered
December 12, 1901, affirming a judgment in favor of plaiu-
tiff entered upon a verdict and an order denying a motion for
a new trial.
Henry Bacon and Joseph Merrltt for appellants.
Frank 8. Anderson and John F. Anderson for respondent.
Judgment affirmed, with costs, on authority of Boer v.
McCullough (176 K Y. 97).
Concur: Parker, Ch. J., O'Brien, Bartlett, Vann, Cul-
len and Werner, J J. Absent : Martin, J.
Edward S. Walsh, Respondent, v. George W. Hyatt et al.,
Appellants.
Walsh v. Uyatt, 74 App. Div. 20, affirmed.
(Argued June 24, 1903; decided October 6f 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the second judicial department, entered
MEMORANDA. 551
June 10, 1902, affirming a judgment in favor of plaintiff
entered upon a verdict and an order denying a motion for a
new trial.
Leo J. Kersburg and Herbert 11. Limburger for appellants.
James M. Hunt for respondent.
Judgment affirmed, with costs ; no opinion.
Concur : Parker, Ch. J., O'Brien, Bartlett, Vann, Cul-
i,en and Werner, JJ. Absent : Martin, J.
E. Clifford Potter, Respondent, v. Caroline M. Boycr,
Appellant.
Ptrtter v. Boyce, 73 App. Div. 383, affirmed.
(Argued June 24, 1903; decided October 6, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered
August 11, 1902, upon an order reversing a judgment in
favor of defendant, entered upon a decision of the court on
trial at Special Term and directing judgment for plaintiff.
Henry Thcmpson for appellant.
Marcus T. Hun and David B. Ogden for respondent.
Judgment affirmed, with costs ; no opinion.
Concur : Parker, Ch., J., O'Brien, Bartlett, Vann and
Werner, JJ. Absent : Martin, J. Not voting : Cullen, J.
Eliza J. Arkenburgh, as Executrix of Robert T. Arken-
buroh, Deceased, Appellant, v. Robert F. Little, Respond-
ent, Impleaded with Others.
Arkenburgh v. Little, 49 App. Div. 636, affirmed.
(Argued May 1, 1903; decided October 13, 1908.)
Appeal from a judgment, entered June 20, 1902, upon an
order of the Appellate Division of the Supreme Court in the
second judicial department, affirming an interlocntory judg-
552 MEMORANDA,
ment overruling a demurrer to a defense in the answer entered
upon a decision of the court at a Trial Term without a jury*
Charles Edward Souther for appellant.
Frank W. Arnold for respondent.
Judgment affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., Gray, O'Brien, Bartlett,
Vann, Cullen and Werner, J J.
The People of the State of New York ex rel. The Stand-
ard Water Meter Company, Appellant, v. Robert Grier
Monroe, as Commissioner of Water Supply, Gas and Elec-
tricity of the City of New York, Respondent.
People ex rel. Standard W. M. Co. v. Monroe, 84 App. Div. 241, appeal
dismissed.
(Argued October 9, 1903; decided October 13, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered June
10, 1903, which affirmed an order of Special Term denying a
motion for a peremptory writ of mandamus.
George E. Waldo for appellant.
George L. Rives, Corporation Counsel {Theodore Connclij
and Arthur Sweeny, of counsel), for respondent.
Appeal dismissed, with costs ; no opinion.
Concur : O'Brien, Bartlett, Martin, Vann, Cullen and
Werner, J J. Absent : Parker, Ch. J.
Ann Glennon, as Administratrix of the Estate of Kichari>
Glennon, Deceased, Appellant, v. Erie Railroad
Company, Respondent.
Glennon v. Erie R R. Co., 86 App. Div. 397, appeal withdrawn.
(Argued October 5, 1903; decided October 13, 1903.)
Motion to withdraw an appeal from a judgment of the
Appellate Division of the Supreme Court in the second
MEMORANDA. 55S
judicial department, entered August 5, 1903, which affirmed a
judgment of the court at a Trial Term dismissing the com-
plaint after the rendition by the jury of a verdict in favor of
plaintiff and an order denying a motion for a new trial.
The motion was made upon the ground that the appeal waa
not properly taken.
Robert IL Barnett for motion.
Albert ITessberg opposed.
Motion granted upon payment of costs.
Leon T. Walter, Appellant, v: Henrt Tomkins et al.„
Respondents, Impleaded with Another.
Walter v. Tomkins, 71 App. Div. 21, appeal dismissed.
(Argued October 5. 1903; decided October 13, 1903.)
Motion to dismiss an appeal from a judgment of the
Appellate Division of the Supreme Court in the first judicial
department, entered April 22, 1902, affirming a judgment in
favor of defendants entered upon a decision of the court at
Special Term sustaining a demurrer to the complaint.
The motion was made upon the grounds that the undertak-
ing required to perfect the appeal had not been filed and the
record on appeal had not been served upon the respondents.
John S. Montgomery for motion.
Samuel JPrucAthandler opposed.
Motion granted unless appellant within ten days after service
of order files a proper undertaking and pays twenty -five
dollars costs.
Manhattan Fire Insurance Company et al., Appellants, v.
Joseph Fox et al., Respondents.
ManJuxttan Fire Ins. Co. v. Fax, 74 App. Div. 271, appeal dismissed.
(Argued October 5, 1903; decided October 13, 1903.)
Motion to dismiss an appeal from a judgment of the
Appellate Division of the Supreme Court in the first judicial
554 MEMORANDA.
department, entered July 23, 1902, affirming a judgment in
favor of defendants entered upon a dismissal of the com-
plaint by the court at a Trial Term.
The motion was made upon the ground that the undertak-
ing required to perfect the appeal had not been tiled.
William H. Blain for motion.
George M. Fannin opposed.
Motion granted and appeal dismissed, with costs, unless
within ten days after service of copy of order the appellants
perfect an appeal by tiling a proper undertaking and pay ten
dollars costs.
In the Matter of the Application of the George B. Wray
Drug Company for a Voluntary Dissolution. (Xo. 1.)
Benjamin S. Comstock et al., Appellants ; Harry R. IIicks,
as Receiver, etc., Respondent.
Reported below, 82 App. Div. 645.
(Argued October 5, 1903; decided October 13, 1903.)
Motion to dismiss an appeal from an order of the Appel-
late Division of the Supreme Court in the second judicial
department, entered May 1, 1903, which affirmed an order of
Special Term denying a motion to set aside a final order dis-
solving the George B. Wray Drug Company.
The motion was made upon the grounds that the order
appealed from was not a final order in a special proceeding ;
that permission to appeal therefrom had not been granted
nor had the Appellate Division certified that any question
was involved which ought to be reviewed by the Court of
Appeals.
Ralph E. Prime, Jr., for motion.
Waldo G. Morse, opposed.
Motion denied, with ten dollars costs.
MEMORANDA. 555
In the Matter of the Application of the George B. Wray
Drug Company for a Voluntary Dissolution. (No. 2.)
Benjamin S. Comstock et al., Appellants ; Harry R. Kicks,
as Receiver, etc., Respondent.
Matter of George B. Wray Drug Co., 83 App. Pi v. 634, appeal dismissed.
(Argued October 5, 1903; decided October 13, 1903.)
Motion to dismiss an appeal from an order of the Appellate
Division of the Supreme Court in the second judicial depart-
ment, entered April 24, 1903, which affirmed an order of
Special Term denying a motion to compel the clerk of West-
chester county to certify appellants' papers on appeal.
The motion was made upon the grounds that the order
appealed from was not a final order in a special proceeding,
that no allowance of the appeal had been granted, nor had the
Appellate Division certified that any question was involved
which ought to be determined by the Court of Appeals.
Ralph K Prime, Jr., for motion.
Waldo G. Morse opposed.
Motion granted and appeal dismissed, with costs, and ten
dollars costs of motion.
The Board of Education of Union Free School District
No. 6 of the Town of Cortlandt, Appellant, v. The
Board of Education of Union Free School District
No. 7 of the Town of Cortlandt, Respondent.
Reported below, 76 App. Div. 355.
(Argued October 5, 1903; decided October 13, 1903.)
Motion to dismiss an appeal from an order of the Appellate
Division of the Supreme Court in the second judicial depart-
ment, entered November 14, 1902, which reversed an order
of Special Term overruling a demurrer to the complaint.
556 MEMORANDA.
The motion was made upon the ground that the Court of
Appeals had no jurisdiction to entertain the appeal
D. S. Herrick for motion.
Elbert P. Janw% opposed.
Motion denied, with ten dollars costs.
Melle S. T. Werner, Respondent, v. William R. Hearst,
Appellant. (Actions 1 and 2.)
Reported below, 76 App. Div. 375.
(Argued October o, 1903; decided October 13, 1903.)
Motion to dismiss an appeal from a judgment of the
Appellate Division of the Supreme Court in the second
judicial department, entered January 16, 1903, affirming a
judgment in favor of plaintiff entered upon a verdict and an
order denying a motion for a new trial.
The motion was made upon the ground that the only ques-
tions of law involved which the Court of Appeals had juris-
diction to consider had become abstract.
Roger 3L Slierman for motion.
David B. Hill opposed.
Motion denied, with ten dollars costs.
Robert Boyd, Appellant, v. The New York Security and
Trust Company et al., Respondents.
Reported below, 85 App. Div. 581.
(Argued October 5, 1903; decided October 13, 1903.)
Motion to dismiss an appeal from a judgment of the
Appellate Division of the Supreme Court in the first judicial
department, entered August 4, 1903, affirming a judgment in
favor of defendants entered upon a decision of the court on
trial at Special Term.
MEMORANDA. 557
The motion was made upon the grounds that the judgment
appealed from was not appealable of right to the Court of
Appeals, and that permission to appeal had not been granted
nor had the Appellate Division certified that a question of
law was involved which ought to be reviewed.
James F. (PEeime for motion.
Lewis Johnston opposed.
Motion denied, with ten dollars costs.
Sarah Irene Lane, as Administratrix of the Estate of Charles
W. D. Lane, Deceased, Respondent, v. The Brooklyn
Heights Railroad Company, Appellant.
Lane v. Brooklyn HeigJUs R. R. Co., 85 App. Div. 85, appeal dismissed.
(Argued October 5, 1903; decided October 13, 1908.)
Motion to dismiss an appeal from an order of the Appellate
Division of the Supreme Court in the second judicial depart-
ment, entered June 19, 1903, which affirmed an order of Spe-
cial Term denying a motion for a new trial upon the ground
of alleged newly-discovered evidence.
The motion was made upon the grounds that the order
appealed from was not a final order in the action nor had per-
mission to appeal therefrom been granted.
James C. Cropsey for motion.
George D. Yeomans opposed.
Motion granted and appeal dismissed, with costs and ten
dollars costs of motion.
The People of the State of New York ex rel. Charles
Clifton, Appellant, i\ Joseph H. De Braoga, as Sheriff of
Queens County, et al., Respondents.
People ex rel. Clifton v. De Bragga, 73 App. Div. 579, appeal dismissed.
(Argued October 5, 1903; decided October 13, 1903.)
Motion to dismiss an appeal from an order of the Appellate
Division of the Supreme Court in the second judicial depart-
558 MEMORANDA.
ment, entered June 18, 1902, which affirmed an order of the
Queens County Court dismissing writs of habeas corpus and
certiorari herein and remanding the relator to the custody of
the defendant.
The motion was made upon the ground that the grand jury
having failed to find an indictment against the relator, the
complaint against him had been dismissed.
John B. Merrill for motion.
Charles S. Hayes opposed.
Motion granted and appeal dismissed, with costs of appeal
and ten dollars costs of motion.
The People of the State of New York ex rel. Clarence
G. Din8More, Respondent, v. II. Fremont Vandewater
et al., Individually and as Members of the Town Board of
the Town of Hyde Park et al., Appellants.
People ex rel. Dinsmore v. Vandewater, 83 App. Div. 60, appeal dismissed.
(Argued October 5, 1903; decided October 13, 1903.)
Motion to dismiss an appeal from an order of the Appellate
Division of the Supreme Court in the second judicial depart-
ment, entered May 25, 1903, which affirmed an order of
Special Term denying a motion to quash a writ of certiorari.
The motion was made upon the ground that the order
appealed from was not appealable to the Court of Appeals.
Edgerton L. Whit/wop, Jr., for motion.
Harry C. Barker opposed.
Motion granted and appeal dismissed, with costs and ten
dollars costs of motion.
Alice I. Birrell, Respondent, r. The New York and
Harlem Railroad Company et al., Appellants.
(Submitted October 5, 1903; decided October 13, 1903.)
Motion to amend remittitur. (See 173 X. Y. 644.)
MEMOEANDA. 559
Motion granted, without costs, and remittitur amended by
adding thereto : " That in said suit or action there was drawn
in question the validity of chapter 339 of the Laws of 1892,
and the acts amendatory thereof, and of the authority exer-
cised thereunder, on the ground of their being repugnant to
the Constitution of the United States, and particularly to sec-
tion 1 of article 14, and the amendments thereto, and of
section 10 of article 1 thereof, and thereupon the decision
of this Court of Appeals was and is in favor of the validity of
said statute and of the authority exercised thereunder."
John Keirxs, Respondent, v. The New York and IIarleh
Railroad Company et al., Appellants.
(Submitted October 5, 1903; decided October 13, 1903.)
Motion to amend remittitur. (See 173 N. Y. 642.)
Motion granted, without costs, and remittitur amended by
adding thereto, " That in said suit or action there was drawn
in question the validity of chapter 339 of the Laws of 1892
and the acts amendatory thereof, and of the authority exer-
cised thereunder, on the ground of their being repugnant to
the Constitution of the United States, and particularly to sec-
tion 1 of article 14 and the amendments thereto, and of section
10 of article 1 thereof, and thereupon the decision of this
Court of Appeals was and is in favor of the validity of said
statute and of the authority exercised thereunder."
In the Matter of the Application of John J. Stewart, Appel-
lant, for a Peremptory Writ of Mandamus against Francis
G. Ward, as Commissioner of Public Works of the City
of Buffalo, et al., Respondents.
(Submitted October 5, 1903; decided October 18, 1903.)
Motion for reargument denied, without costs. (See 173
N. Y. 608 )
560 MEMORANDA.
Lafayette L. Long, Appellant, v. John Richmond,
Respondent.
(Submitted October 5, 1903; decided October 13, 1903.)
Motion for reargument denied, with ten dollars costs. (See
175 N. Y. 495.)
Bernard Welle, Appellant, v. The Celluloid Company,
Respondent.
(Submitted October 5, 1903; decided October 13, 1903.)
% Motion for reargument denied, with ten dollars costs. (See
175 N. Y. 401.)
Charlotte Y. Ackerman, Appellant and Respondent, v.
Clarence F. True, Respondent and Appellant.
(Submitted October 5, 1908; decided October 13. 1903.)
Motion for reargument denied, with ten dollars costs. (See
175 N. Y. 353.)
Horace Russell et al., a6 Executors and Trustees under the
Will of Henry Hilton, Deceased, Appellants and Respond-
ents, v. Edward B. Hilton et al., Respondents.
Albert B. Hilton et al., Appellants ; Helen Hilton et al.,
Respondents and Appellants.
(Submitted October 5, 1903; decided October 13, 1903.)
Motion for reargument denied, with ten dollars costs. (See
175 N. Y. 525.)
Dr. Dadirrian and Sons Company, Respondent, v. William
Hauenstein, Appellant.
(Submitted October 5, 1903; decided October 13, 1908.)
Motion for reargument denied, with ten dollars cofets. (See
175 N. Y. 522.)
MEMORANDA. 561
William Simis, as General Guardian of William Simis, et al.,
* Plaintiffs, v. Charlotte White, Appellant, Impleaded with
Others.
Henry J. Coggeshall, as Receiver of The Mutual Benefit
Loan and Building Company, Respondent.
Simis v. White, 85 App. Div. 618, affirmed.
(Submitted October 5. 1008; decided October 20, 1008.)
Appeal from an order of the Appellate Division of the
Supreme Court in the second judicial department, entered
June 17, 1903, which affirmed an order of the Kings County
Court in surplus money proceedings.
George W. McKenzie, Hamilton Anderson and George P.
Beebe for appellant.
Edward C. Rice for respondent.
Order affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., O'Brien, Bartlett, Martin,
Vann, Cullen and Werner, JJ.
In the Matter of the Application of The New York Central
and Hudson River Railroad Company for the Closing of
Certain Grade Crossings in the Town of Gates.
The Town of Gates, Appellant ; The New York Central
and II cdson River Railroad Company et al., Respondents.
Matter of N. Y. C. d- 1L R. R. R. Co., 70 App. Div. 643, affirmed.
(Argued October 5, 1008; decided October 20, 1003.)
Appeal from an order of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
January 19, 1903, which affirmed a determination of the
board of railroad commissioners closing certain grade cross-
ings in the town of Gates.
36
562 MEMORANDA.
George P. Decker for appellant.
Edward Harris for respondents.
Order affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., O'Brien, Bartlett, Martin,
Vann, Cullen and Werner, JJ.
The People of the State of New York ex rel. William
H. Arnold, Appellant, v. Thomas L. Feitner et al., as
Commissioners of Taxes and Assessments of the City of
New York, Respondents.
People ex rel. Arnold v. Feitner, 76 App. Div. 620, affirmed.
(Argued October 5, 1903; decided October 20, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered
November 28, 1902, which affirmed an order of Special Term
quashing a writ of certiorari to review the action of the
defendants in assessing the relator's personal estate for the
purpose of taxation.
Walter Large for appellant.
George Z. Rives, Corporation Counsel {David liumsey
and James M. Ward of counsel), for respondents.
Order affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., O'Brien, Bartlett, Martin,,
Vann, Cullen and Werner, JJ.
In the Matter of the Application of Camille Weidenfeld*
Appellant, for a Peremptory Writ of Mandamus against
Rudolph Keppler, as President of the New York Stock
Exchange, Respondent.
Matter of Weidenfeld v. Keppler, 84 App. Div. 235, affirmed.
(Argued October 6, 1903; decided October 20, 1908.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered June
16, 1903, which affirmed an order of Special Term denying a
MEMORANDA. 563
motion for a peremptory writ of mandamus to compel defend-
ant to restore the relator to membership in the New York
Stock Exchange.
Herbert R. Zimburger, Edward Lauterbach, Henry L.
Sc/ieuerman and G. Thornton Warren for appellant.
Lewis Cass Zed yard for respondent.
Order affirmed, with costs, on opinion below.
Concur: Parker, Ch. J., O'Brien, Bartlett, Martin,
Vann, Cullen and Werner, JJ.
The People of rrnE State of New York ex rel. William A.
Young, Respondent, v. Thomas Sturois, as Fire Commis-
sioner of the City of New York, Appellant.
People «r rel. Young v. Sturgis, 85 App. Div. 20, affirmed.
(Argued October 6, 1903; decided October 20, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the second judicial department, entered
June 18, 1903, which affirmed an order of Special Term
granting a motion for a peremptory writ of mandamus to
compel defendant to give relator employment in the lire
department of the city of New York.
George Z. Hives, Corporation Counsel {James McKeen of
counsel), for appellant.
Joseph A. Burr for respondent.
Order affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., O'Brien, Bartlett, Martin,
Vann, Cullen and Werner, J J.
In the Matter of the Accounting of the United States Trust
Company of New York, as Trustee under the "Will of
Helena Rogers, Deceased, Respondent.
John Ferdon Rogers, Appellant.
(Submitted October 5, 1903; decided October 20, 1903.)
Motion for reargument denied, with ten dollars costs. (See
175 N. Y. 304.)
564 MEMORANDA.
In the Matter of the Application of Spencer Clinton et ah,
as Executors of Chandler J. Wells, Deceased, Respond-
ents, for a Peremptory Writ of Mandamus against Adam
Boeckel, as Treasurer of the City of Buffalo, Appellant.
Matter of Clinton v. Boeckel, 79 App Div. 645, affirmed.
(Argued October 7, 1903; decided October 27, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
January 20, 1903, which affirmed an order of Special Term
granting a motion for a peremptory writ of mandamus direct-
ing the defendant to receive from the relators the. amount of
tax due from them on certain lands in the city of Buffalo.
Percy S. Lansdowne and Charles L. Feldman for
appellant.
Ulysses S. Thomas for respondents.
Order affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., O'Brien, Bartlett, Martin,
Vann, Cullen and Werner, JJ.
In the Matter of the Application of The Brooklyn Teachers9
Association et ah, Respondents, for a Peremptory Writ of
Mandamus against The Board of Education of the City
of New York et al., Appellants.
Matter of Brooklyn TeacJtertf Association, 85 App. Div. 47, affirmed.
(Argued October 7, 1903; decided October 27, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the second judicial department, entered
June 22, 1903, which reversed an order of Special Term
denying a motion for a peremptory writ of mandamus to
compel the defendants to place the names of certain persons
upon the special list of persons eligible for promotion in the
public schools of the city of New York and granted such
writ.
MEMORANDA. 565
Oeorge L. Hives, Corporation Counsel {James Me Keen
and Walter S. Brewster of counsel ), for appellants.
Ira Leo Bamberger for respondents.
Order affirmed, with costs ; no opinion.
Concur: Parker, Cli. J., O'Brien, Bartlett, Martin,
Vann, Cullen and Werner, JJ.
In the Matter of the Appraisal of the Estate of James S.
Gibbes, Deceased, under the Transfer Tax Act.
The Comptroler of the State of New York, Appellant;
Charles II. Simonton et al., as Trustees for the City of
Charleston, South Carolina, et al., Respondents.
Matter oj Gibbes, 84 App. Div. 510, affirmed.
(Argued October 7, 1903; decided October 27, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered June
30, 1903, which reversed an order of the New York County
Surrogate's Court appraising the estate of James S. Gibbes,
deceased, under the Transfer Tax Act.
Bertram Z. Kratis and Henry B. Wesselman for
appellant.
Richard Reid Rogers find James F. Horan for respondents.
Order affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., O'Briex, Bartlett, Martix,
Yaxn, Cullen and Werner, J J.
The People of the State of New York ex rel. George
Blair, Respondent, v. Homer Folks, as Commissioner of
Public Charities of the City of New York, Appellant.
People ex rel. Blair v. Fblks, 86 App. Div. 626, affirmed.
(Submitted October 7, 1908; decided October 27, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered July
566 MEMORANDA.
27, 1903, which affirmed an order of Special Term granting a
motion for a peremptory writ of mandamus to compel the
defendant to reinstate the relator in the position of superin-
tendent of out-door poor in the city of New York.
George L. Hives, Corporation Counsel (Theodore Connoly
and William B. Crowell of counsel), for appellant.
Asa Bird Gardiner for respondent.
Order affirmed, with costs ; no opinion.
Concur : Parker, Ch. J., O'Brien, Bartlett, Martin,
Yann, Cullen and Werner, JJ.
In the Matter of the Petition of Warren Cruiksuank,
Appellant, for an Order Canceling Liquor Tax Certificate
No. 2,901, Issued to IIenr? Hesterberg, Respondent.
Matter of Cruikshank, 82 App. Div. 645, affirmed.
(Submitted October 7, 1903; decided October 27, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the second judicial department, entered
April 27, 1903, which affirmed an order of Special Term
denying a petition for an order canceling and revoking a
liquor tax certificate.
George C. Case for appellant.
Hugo Hirsh for respondent.
Order affirmed, with costs; no opinion.
Concur: Parker, Ch. J., O'Brien, Bartlett, Martin,
Vann, Cullen and Werner, J J.
In the Matter of the Application of Adele Tillotson Pieris,
Respondent, for an Order to Determine the Lien of George
William Clune, an Attorney, Appellant.
Matter of Pieris, 82 App. Div. 466, affirmed.
(Argued October 7, 1908; decided October 27, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the second judicial department, entered
MEMORANDA. 567
July 14, 1903, which affirmed an order of Special Term con-
firming the report of a referee appointed in the above-entitled
proceeding.
Thomas Abbott McKennell for appellant.
Francis A. McCloskey for respondent.
Order affirmed, with costs, on opinion below.
Concur: Parker, Ch. J., O'Brien, Bartlett, Martin,
Vann, Cullen and Werner, J J.
The People of the State op New York ex rel. The Con-
solidated Telegraph and Electrical Subway Company,
Appellant, v. Robert Grier Monroe, as Commissioner of
Water Supply, Gas and Electricity of the City of New
York, et al., Respondents.
People ex rel. Consolidated T. <& E. Subway Co. v. Monne, 85 App. Div.
642. affirmed.
(Argued October 8, 1908; decided October 27, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered August
3, 1903, which affirmed an order of Special Term denying a
motion for a peremptory writ of mandamus to compel the
defendant commissioner of water supply, gas and electricity to
issue to tho relator permits to open the streets of the city of
New York for the purpose of constructing ducts for electrical
conductors.
Henry J. Hemmens and Samuel A. Beardsley for appellant.
James Byrne for respondents.
Order affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., O'Brien, Bartlett, Martin,
Vann, Cullen and Werner, J J.
568 MEMOKANDA.
In the Matter of the Application of Charles Schlivinski*
by Hyman Schlivinski, his Guardian ad Litem, Appellant
for a Peremptory Writ of Mandamus against William H.
Maxwell, as City Superintendent of Schools of the City of
New York, Respondent.
Matter of Schlivinski v. Maxwell, 80 App. Div. 313, appeal dismissed.
(Argued October 8, 1903; decided October 27, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the second judicial department, entered
March 13, 1903, which affirmed an order of Special Term
denying a motion for a peremptory writ of mandamus to com-
pel the defendant to make and file in his office one complete
list of all persons to whom teacher's license No. 1 has been
issued and to place thereon the name of the relator in its
proper place.
Ahram Shlivek for appellant.
George Z. Rives, Corporation Counsel (Tlieodore Connoly9
James McKeen and Walter S. Brewster of counsel), for
respondent.
Appeal dismissed, with costs ; no opinion.
Concur: Parker, Ch. J., O'Brien, Bartlett, Martin,
Vann, Cullen and Werner, JJ.
The People of the State of New York ex rel. Isidore S.
Chirurg, Appellant, v. William M. Calder, as Superin-
tendent of Buildings for the Borough of Brooklyn, City of
New York, Respondent.
People ex rel. Chirurg v. Colder, 75 App. Div. 625, affirmed.
(Submitted October 8, 1903; decided October 27, 1908.)
Appeal from an order of the Appellate Division of the
Supreme Court in the second judicial department, entered
October 14, 1902, which affirmed an order of Special Term
MEMOKANDA. 569
denying a motion for an alternative writ of mandamus to
compel the reinstatement of relator as a clerk in the bureau of
buildings of the borough of Brooklyn.
May <& Fragner for appellant.
George Z. Hives, Corporation Counsel {James McKeen of
counsel), for respondent.
Order affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., O'Brien, Bartlett, Martin,
Vann, Cullen and Werner, JJ.
Ellis Goldberg, Respondent, v. George M. Jacocks et al.,
Composing the Firm of Joseph F. Jacocks & Co., et al.,
Defendants.
In the Matter of the Application of Joseph F. Jacocks,
Appellant, to Cancel and Discharge of Record the Judg-
ments Herein.
Goldberg v. Jacocks, 86 App. Div. 626, affirmed.
(Argued October 8, 1903; decided October 27, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered July
14, 1903, which affirmed an order of Special Term denying a
motion for the cancellation of two judgments under section
1268 of the Code of Civil Procedure.
Alexander Lehman and Ambrose G. Todd for appellant.
C F. Goddard for respondent.
Order affirmed, with costs ; no opinion.
Concur : Parker, Ch. J., O'Brien, Bartlett, Martin,
Vann, Cullen and Werner, JJ.
570 MEMORANDA.
In the Matter of the Appraisal of the Estate of Elizabeth L.
Howe, Deceased, under the Transfer Tax Act.
John W. Kimball, as Treasurer of Kings County, Appellant ;
Leavitt Howe et al., as Trustees, Respondents.
Matter of Hov>e% 86 App. Div. 286, affirmed.
(Argued October 9, 1908; decided October 27, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the second judicial department, entered
July 24, 1903, which affirmed an order of the Kings County
Surrogate's Court assessing the transfer tax on the estate of
Elizabeth L. Howe, deceased.
Robert B. Bach for appellant.
C. W. West for respondents.
Order affirmed, with costs, on opinion below.
Concur : O'Brien, Bartlett, Martin, Vann, Cullen and
Werner, J J. Not sitting : Parker, Ch. J.
In the Matter of the Probate of the Will of William M.
Kice, Deceased.
Albert T. Patrick, Appellant; John D. Bartine,
Kespondent.
Matter of Rice, 81 App. Div. 322, affirmed.
(Argued October 12, 1903; decided October 27, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered March
30, 1903, which affirmed a decree of the New York County
Surrogate's Court refusing probate to an alleged will of
William M. Rice, deceased, bearing date June 30. 1900, and
admitting to probate the will of said deceased bearing date
September 26, 1896.
MEMORANDA. 571
John C. Tomlinson, Max J. Kohler and Edgar J. Kofder
for appellant.
William B. Ilornblower, John M. Bowers, James Byrne
Leo N. Levi and Mark W. Potter for respondent.
Motion to dismiss above appeal denied, without costs.
Order affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., Gray, O'Brien, Bartlett,
Haight, Martin and Vann, JJ.
The People of the State of New York ex rel. Walter
MoBain, Appellant, v. Edward II. Wiswall et al., as
the Board of Town Auditors of the Town of Colonie,
Respondents.
People ex rel. McBain v. Wiswall, 84 App. Div. 685, affirmed.
(Argued October 12, 1903; decided October 27, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the third judicial department, entered May
7, 1903, which confirmed the action of the defendants in audit-
ing the relator' 8 claim for services as overseer of the poor of
the town of Colonie.
J. S. Frost for appellant.
George W. Stedman for respondents.
Order affirmed, with costs; no opinion.
Concur: Parker, Ch. J., Gray, O'Brien, Bartlett,
Haight, Martin and Vann, JJ.
Charles A. Brown et al., Appellants, v. The City of New
York et al., Respondents.
Brown v. City of New York, 78 App. Div. 361, affirmed.
(Argued October 19, 1903; decided October 30, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered Feb-
ruary 10, 1903, affirming a judgment in favor of defendants
572 MEMORANDA.
entered upon a dismissal of the complaint by the court on trial
at Special Term.
Z. Lafiin Kellogg and Alfred C. Pette for appellants.
George Z. Hives, Corporation Counsel {TJieodore Connohf
of counsel), for respondents.
Judgment affirmed, with costs ; no opinion.
Concur : Parker, Ch. J., Gray, Haight, Martin, Yank,
Cullen and Werner, JJ.
Henry A. Epjscopo, Respondent, v. The Mayor, Aldermen
and Commonalty of the City of New York, Appellant,
et al., Respondents.
Episcopo v. Mayor, etc., of N. F„ 80 App. Div. 627, affirmed.
(Submitted October 19, 1903; decided October 30, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered Feb-
ruary 27, 1903, affirming a judgment in favor of plaintiff and
defendants, respondents, entered upon a decision of the court
on trial at Special Term.
George Z. Hives, Corporation Counsel (T/wodore Connoly
and Terence FarUy, of counsel), for appellant.
Gilbert Ray Ilawes for plaintiff, respondent.
Z. Laflin Kellogg, Alfred C. Pette, Charles W. Dayton, F.
E. M. Bullowa, J. Woolsey SJiepard, Ii. A. Stacpoole and
Austin E. Pressinger for defendants, respondents.
Judgment affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., Gray, Haight, Martix, Vann,
Cullen and Werner, JJ.
MEMORANDA. 573
Michael J. Mack, Appellant, v. The Mayor, Aldermen and
Commonalty of the City of New York, Respondent.
Mack v. Mayer, etc., of X. F., 82 App. Div. 637, affirmed.
(Argued October 19, 1903; decided October 30, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered May
13, 1903, affirming a judgment in favor of defendant entered
upon a dismissal of the complaint by the court at a Trial Term.
L. Laflin Kellogg and Alfred C. Pette for appellant.
George L. Hires, Corporation Counsel (Tlieodore Connol/y
an4 Charles A. O'Xeil of counsel), for respondent.
Judgment affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., Gray, IIaight, Martin, Vann,
Cullen and Werner, JJ.
Thomas McNamara et al., Composing the Firm of McNamara
and Company, Appellants, v. William R. Willoox, as
Commissioner of Parks for the Boroughs of Manhattan
and Richmond in the City of New York, Respondent.
McNamara v. WiUcox, 81 App. Div. 635, affirmed.
(Argued October 19, 1903; decided October 30, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered March
18, 1903, affirming a judgment in favor of defendant entered
upon a dismissal of the complaint by the court on trial at
Special Term.
Arthur C Butts for appellants.
George L. Rives, Corporation Counsel (Theodore Connoly
of counsel), for respondent.
Judgment affirmed, with costs ; no opinion.
Concur: Gray, IIaight, Vann and Werner, JJ. Dis-
senting : Parker, Ch. J., Martin and Ccllen, JJ.
574 MEMORANDA.
Alfred Pots,* Appellant, v. David E. Sicher, Respondent.
Pots v. SicJter, 66 App. Div. 614, affirmed.
(Argued October 14, 1903; decided October 30, 1908.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the second judicial department, entered
November 26, 1901, affirming a judgment in favor of defend-
ant entered upon a decision of the court on trial at Special
Term.
Jesse W. Johnson for appellant.
Daniel P. Hays for respondent.
Judgment affirmed, with costs ; no opinion.
Concur : Parker, Ch. J. ; Gray, O'Brien, Bartlett,
Haioht, Martin and Yann, JJ.
The People of the State of New York ex rel. James R.
McCullougii, Appellant, v. Jonathan D. Wilson et al.,
Constituting the Board of Public Works of the City of
Newburgb, et ah, Respondents.
PtopU ex rel. McCullotigh v. Wilson, 80 App. Div. 640, appeal dismissed.
(Argued October 8, 1903; decided October 30, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the second judicial department, entered
March 17, 1903, which affirmed an order of Special Term
denying a motion for a peremptory writ of mandamus.
Hobert II Barnctt for appellant.
C. Z. Waring for respondents.
Appeal dismissed, with costs; no opinion.
Concur : Parker, Ch. J. ; O'Brien, Bartlett, Martin,
Vann, Cullen and Werner, JJ.
MEMORANDA. 575
Heman Stannard et al., as Administrators of the Estate of
Heman Stannard, Deceased, Respondents, v. Joseph
Green, Appellant.
Stannard v. Green. 62 App. Div. 631, affirmed.
(Argued October 14, 1903; decided October 30, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the third judicial department, entered
July 17, 1901, affirming a judgment in favor of plaintiff
entered upon the report of a referee.
J. B. McCormick for appellant.
No one for respondents.
Judgment affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., Gray, O'Brien, Bartlett>
Haight, Martin and Vann, J J.
Cora Chester Tripp, Respondent, v. George T. Chester^
Individually, and as Executor of Mary P. Chester
Deceased, Appellant, Impleaded with Others.
Tripp v. Chester, 66 App. Div. 623, affirmed.
(Argued October 13, 1903; decided October 30, 1903.)
Appeal from a judgment, entered June 3, 1902, upon an
order of the Appellate Division of the Supreme Court in the
fourth judicial department, affirming an interlocutory judg-
ment in favor of plaintiff entered upon a decision of the court,
on trial at an Equity Term.
Frank C. Ferguson for appellant.
Adelbert Moot for respondent.
Judgment affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., Gray, O'Brien, Bartlett,.
Haight, Martin and Vann, JJ.
576 MEMORANDA.
Stevens Voisin, Plaintiff, v. The Thames and Mersey
Marine Insurance Company, Respondent.
George Freifeld, as Receiver of Stevens Voisin, Appel-
lant ; Mitchell & Mitchell, Respondent.
Voisin v. Thames db Mersey M. Ins. Co., 84 App. Div. 642, appeal
dismissed.
(Argued October 9, 1903; decided October 30, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered June
29, 1903, which affirmed an order of Special Term denying a
motion to vacate and set aside an order of discontinuance.
II A. Vien and A. II Parhhurst for appellant.
C. JV. Bovee, Jr., and Wilhelmus Mynderse for respondents.
Appeal dismissed, with costs; no opinion.
Concur : O'Brien, JBartlett, Martin, Vann, Cullen and
Werner, JJ. Absent : Parker, Ch. J.
Francis X. Zapf, Appellant, v. Lulu N. Carter, Respondent.
Zapfv. Carter, 70 App. Div. 895, appeal dismissed.
(Argued October 15, 1903; decided October 30, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
March 22, 1902, reversing an interlocutory judgment in favor
of plaintiff entered upon the report of a referee and granting
a new trial.
John Conboy for appellant.
Geof*ge C. Carter for respondent.
Appeal dismissed, with costs ; no opinion.
Concur : Parker, Ch. J., Gray, Bartlett, Haioht, Mar-
tin and Vann, JJ. Not voting : O'Brien, J.
MEMORANDA. 577
The People of the State of New Yobk ex rel. The New
York City and Westchester Railway Company, Appel-
lant, v. The Board of Railroad Commissioners et al.,
Respondents.
People ex rel. N. Y. City db W. R. Co. v. Rd. R. R. Comrs., 81 App. Div.
287, affirmed.
(Argued October 6, 1908; decided November 10, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the third judicial department, entered April
4, 1903, which confirmed a determination of the board of
railroad commissioners granting to the respondent New York
and Port Chester Railroad Company a certificate of public con-
venience and necessity under section 59 of the Railroad Law.
David B. Hill and J. TredweU Richards for appellant.
Judson S. Zandon, William C Trull and Frank Sullivan
Smith for respondents.
Order affirmed, with costs ; no opinion.
Concur : Parker, Ch. J. ; O'Brien, Bartlett, Martin,
Vann, Cullen and Werner, JJ.
The People of the State of New York ex rel. Ella
Beebe, Appellant, v. The Warden of the City Prison of
the Borough of Manhattan, City of New York, et al.j
Respondents.
The People of the State of New York ex rel. Leah Van
Linda, Appellant, The Warden of the City Prison Of
the Borough of Manhattan, City of New York, et al.,
Respondents.
People ex rel. Beebe v. Warden, etc., 86 App. Div. 626, affirmed.
People ex rel. Van Linda v. Warden, ete.t 86 App. Div. 626, affirmed.
(Submitted October 19, 1903; decided November 10, 1908.)
Appeals from orders of the Appellate Division of the
Supreme Court in the first judicial department, entered July
37
578 MEMORANDA.
18, 1903, which affirmed orders of Special Term dismissing
writs of habeas corpus and certiorari and remanding relators
to custody.
L Henry Harris and Leon Kronfeld for appellants.
William Travers Jeratne (Arthur C. Train and Henry
G. Gray of counsel) for respondents.
Orders affirmed ; no opinion.
Concur: Gray, Haioht, Martin, Vann, Cullrn and
Werner, JJ.
Parker, Ch. J. (dissenting). There is evidence tending to
show that relator exacted more than 6% interest as the condi-
tion of making a loan of $225 to complainant. Complainant
neither offered nor gave security for the loan. The question
presented to .this court is whether a loan made under such
circumstances constitutes a misdemeanor under section 378,
Penal Code. My associates are of the opinion that it does.
While I dissent from that view, I admit that the section stand-
ing by itself justifies It. Indeed I think the concession is fairly
called for that a natural and ordinary reading of the section,
without having in mind other statutes and the circumstances
attending the amendment of the section in 1895, would lead
to the conclusion that the section makes the loan of money
without security at a usurious rate of interest a misdemeanor.
Courts do not, however, always construe a statute accord-
ing to its strict letter. It is a cardinal principle of construc-
tion, often and wisely employed, that statutes should be con-
strued according to the intent of the law-making power, and
to that end the letter must give way. As this court says in
Delafield v. Brady (108 K Y. 524, 529): " Statutes framed
in general terms frequently embrace things which are not
within the intent of the law makers, and sometimes things
within such intent are not within the letter. Hence, in con-
struing statutes, it has frequently been held that a thing
which is within the letter of a statute is not within the statute
unless it be within the intent of the law makers." The court
cites in support of such proposition a number of authorities
MEMORANDA. 579
in this state, among them Z. & db M. S. By. Co. v. Roach
(80 N. Y. 339, 344) in which the court says : " It cannot be
doubted that the law makers did not intend that this law
should be applied in such cases ; and yet they are within the
letter of the law. The law makers cannot always foresee all
the possible applications of the general language they use ; and
it frequently becomes the duty of the courts in construing
statutes to limit their operation, so that they shall not produce
absurd, unjust or inconvenient results not contemplated or
intended. A case may be within the letter of the law and yet
not within the intent of the law makers ; and in such a case a
limitation or exception must be implied."
It is true that as the section stood prior to the act of 1895
the taking under any circumstances of a greater interest than
that allowed by law constituted a misdemeanor, and it was
made so by chapter 676, Laws 1881. (Penal Code.) But very
shortly the legislature began to create exceptions* presumably
because it was discovered that the statute injured those it was
intended to benefit, and that economically considered it was
framed on anti-business principles, without having behind it
the power to make business principles give way.
Bates of interest in the business world are at all times
affected by the character of the security. Money may be
borrowed with government bonds as collateral at half the
legal rate when a loan upon other securities less marketable,
and having something of a speculative character, will call
for the full legal rate. So, too, money may be borrowed upon
a bond secured by a mortgage on marketable real estate for
less than half its value at 4% or less, when h% or 6% will be
required if so large a loan be applied for as will approximate
the full value of the real estate, and this is so because the ele-
ment of risk as to some part of the investment is introduced by
the necessity for a greater loan. And whenever that element
enters, the more conservative financial institutions and indi-
viduals refuse to make a loan, and those who are willing to
take something of a risk demand extra compensation for it,
and if they cannot secure it the loan will not be made.
The person who desires to borrow having no personal prop-
erty to offer as collateral security, or real estate to mortgage,
580 MEMORANDA.
finds it difficult to borrow, however much he may need money,
and however well intentioned and honest he may be, because
there is in his case the possibility that sickness may postpone
the payment of the loan, or death make its collection impos-
sible. And in such case the risk of a loan is very considerable,
and men of means will generally refuse to take the chances
unless they receive compensation for the risk. A statute,
therefore, which subjects a man to fine or imprisonment, or
both, for accepting more than 6$ interest naturally operates,
in times at least when rates of money are ruling high, to
deprive the man without securities to pledge of an opportunity
to borrow money, however pressing may be the necessity for
it, whether caused by illness in his family or impending dis-
aster which could be averted by the money which he would
borrow, even should its repayment with interest require a very
substantial part of all his possible earnings for a considerable
period in the future. A statute accomplishing such a result
should be entitled, " An act to prevent a man without means
from borrowing money." This statute should not be so con-
strued as to accomplish such a result if from an examination
of it in the light of other statutes, and the circumstances sur-
rounding their enactment, it is apparent that the legislature
intended otherwise.
Now it seems that, as has already been suggested, almost
immediately after the enactment of section 378, Penal Code,
in 1881, it was discovered by those charged with the respon-
sibility of legislation that the section was too drastic, and the
year following an exception to the general law was created
by what is known as the " Demand Loan Act " (Laws 1882,
eh. 257), entitled " An act in relation to advances of money
upon warehouse receipts, bills of lading, certificates of stock,
certificates of deposit and other negotiable instruments." It
provided in effect that where moneys were advanced payable
on demand in an amount more than $5,000, with securities of
the kind suggested in the title pledged as collateral for such
payment, it should be lawful to receive as compensation for
the loan any sum agreed upon in writing by the parties.
Why it should then be insisted that a man without any col-
lateral whatever to pledge should not be permitted to compen-
MEMORANDA. 581
sate one who should advance to him money at any rate agreed
upon between them in writing is difficult of comprehension.
Certainly it would seem that he would find it much more
difficult to secure a loan of money than the one with good
collateral to pledge.
In 1883 another exception to the general usury law was
created by section 7 of what is known as the " Pawnbrokers'
Act" (Laws 1883, ch. 339).
These statutes have no direct bearing upon the question of
the construction to be given to the section in question, and are
referred to only because they show the tendency to relieve
certain parties from the drastic effects of the general usury
law. But when section 378, Penal Code, was so amended by
ch. 72, Laws 1895, as to present the question we now have
before us — Whether by it the legislature intended to so
modify the section as that the loan of money at a usurious
rate of interest when not secured by certain prohibited per-
sonalty should not constitute a misdemeanor? — chapter 326,
Laws 1895, was also enacted creating another exception to the
general usury law in favor of certain corporations loaning not
' more than $200 at specified rates of interest for a certain
limited period of time. Section 5 of that act reads as follows :
" In any such county no person or corporation, other than
corporations organized pursuant to this act, shall, directly or
indirectly, charge or receive any interest, discount or con-
sideration greater than at the rate of six per cent per annum
upon the loan, use or forbearance of money, goods or things
in action less than two hundred dollars in amount or value, or
upon the loan, use or sale of personal credit in any wise,
where there is taken for such loan, use or sale of personal
credit any security upon any household furniture, apparatus
or appliances, sewing machine, plate or silverware in actual
use, tools or implements of trade, wearing apparel or jewelry.
The foregoing prohibition shall apply to any person who, as
security for any such loan, use or forbearance of money, or
for any such loan, use or sale of personal credit as aforesaid,
makes a pretended purchase of property from any person and
permits the owner or pledgor to retain the possession thereof,
or who, by any device or pretense of charging for his services
582 MEMORANDA.
or otherwise, seeks to obtain a larger compensation in any
case hereinbefore provided for. Any person, and the several
officers of any corporation, who shall violate the foregoing
prohibition, shall be guilty of a misdemeanor, and upon proof
of such fact the debt shall be discharged and the security shall
be void. But this section shall not apply to licensed pawn-
brokers, making loans upon the actual and permanent deposit
of personal property as security ; nor shall this section affect
in any way the validity or legality of any loan of money or
credit exceeding two hundred dollars in amount."
It will be noted that this section prohibits the taking of a
greater rate of interest than 6fc per annum " upon the loan,
use or forbearance of money, goods or things in action less
than two hundred dollars in amount or value, or upon the
loan, use or sale of personal credit in any wise, where there
is taken for such loan, use or sale of personal credit any
security upon any household furniture, apparatus or appli-
ances, sewing machine, plate or silverware in actual use, tools
or implements of trade, wearing apparel or jewelry." By
this section then neither the loan, use nor sale of personal
credit without security at a greater rate of interest than 6£ *
per annum is prohibited.
Now turning to section 378, Penal Code, which was amended
the same year the act from which we have quoted was passed
— by which there is added to section 378 language never
there before, either in substance or spirit, and which language
added is almost identical with the language found in section 5
already quoted — we find that it is capable of such a con-
struction as makes a difference between " loan or forbearance
of money " and the " use or sale of personal credit," in that
a loan at a usurious rate, whether the prohibited security be
taken or not, constitutes a misdemeanor, while the use or sale
of personal credit does not unless secured " upon any house-
hold furniture, sewing machine, plate or silverware in actual
nse, tools or implements of trade, wearing apparel or jewelry."
No good reason has been advanced — nor do I think can
be — for any such distinction, and that the legislature saw
no reason for the distinction is evidenced by section 5 of the
Corporation Loan Law, which, as we have seen, places both
MEMORANDA. 583
upon the same footing. The legislature attempted to amend
section 378, as it seems to me, so that it should harmonize
with the letter and the spirit of the Corporation Loan Law —
which was in process of enactment at the same time, and
which called its attention to a direction in which the pledg-
ing of certain classes of security for money loaned at a
usurious rate could be made to work most disastrously to
families in humble financial circumstances — and it provided
that a loan or sale of personal credit where articles therein
named were taken as security should constitute a misde-
meanor, otherwise a usurious loan by such a corporation was
not prohibited.
Now, section 378, as it then stood, made it a misdemeanor
to loan money at a greater than lawful interest, and the
draftsman of the amendment to section 378 — by which it
was intended, as it seems to me, very clearly, to harmonize
that section with section 5 of the Corporation Loan Law —
so prepared it that the section reads as follows :
" A person who, directly or indirectly, receives any inter-
est, discount or consideration upon the loan or forbearance of
money, goods or things in action, or upon the loan, use or
sale of his personal credit in anywise, where there is taken for
such loan, use or sale of personal credit security upon any
household furniture, sewing machines, plate or silverware, in
actual use, tools or implements of trade, wearing apparel or
jewelry, or as security for the loan, use or sale of personal
credit as aforesaid, makes a pretended purchase of such prop-
erty from any person, and permits the pledgor to retain the
possession thereof, greater than six per centum per annum, is
guilty of a misdemeanor."
It will be seen that the original section was left standing,
but before the words " greater than is allowed by statute is
guilty of a misdemeanor " the substance of the provisions in
section 5 was inserted, and in many substantial respects the
phraseology of section 5 was employed, beginning with the
words "or upon a loan."
In its reference to pretended purchase of property section
378, as amended, uses the words " or as security for the loan,
use or sale of personal credit," while section 5 reads, " as secu-
584 MEMOKANDA.
rity for any such loan, use or forbearance of money, or for any
such loan, use or sale of personal credit." This difference
presents an opportunity for so reading the two statutes that
the loan of money shall be placed on a different basis than the
use or sale of personal credit, the Penal Code making it a
misdemeanor under all circumstances and section 5 of the
other statute only when it is secured in some method by prop-
erty of the kind mentioned in the statute. But this, I think,
was not the intention of the lawmakers.
The facts to which reference has been made and the infer-
ences of fact fairly dedncible therefrom may be summed up
as follows: In 1895 the legislature, for the first time, was
forcibly impressed with the importance of enabling a man
without means to secure a needed loan although a greater
than the legal rate of interest must be paid for that purpose,
and at the same time to secure his family from the possibility
of being subjected to the loss of household necessities in order
to satisfy the debt, and a statutory scheme looking to that end
was devised, which may have had behind it the intelligent
direction and push of philanthropists. Because that proposed
enactment, which subsequently ripened into law, found favor,
it became necessary to amend the Penal Code so that it should
be in accord with the new policy regarding those having
necessity for small loans; hence the amendment to section
378, Penal Code, by incorporating therein the substance of the
provisions of the new act. The amendment was apparently
drawn by a different and less cautious draftsman, and led to
an enactment which results in this controversy as to the intent
of the legislature. No reason has been presented, nor can
there be, for the difference which it is contended exists
between the two acts. Therefore, it would seem, in the light
of all the legislation bearing on the subject, that such differ-
ence was due to mistake rather than intention. If that be so,
it would follow that we should read the statute as not declar-
ing a person guilty of a misdemeanor who exacts more than
the legal rate of interest upon a simple loan of money. As I
think it should be so read, I advise a reversal of the orders
appealed from.
MEMORANDA. 585
The City of New Yoke, Respondent, v. MoCaldin Brothers
Company, Appellant.
City of New York v. McCaldin Bros. Co., 81 App. Div. 622, affirmed.
(Argued October 20, 1903; decided November 10, 1908.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered April
22, 1903, reversing a judgment in favor of defendant entered
upon a decision of the court at a Trial Term without a jury
and granting a new trial.
William L. Turner and Frcmk D. Arthur for appellant.
George L. Rimes ^ Corporation Counsel (Theodore Connoly,
Martin Saxe and Henry M. Powell of counsel), for
respondent.
Order affirmed on opinion below, and judgment absolute
ordered for plaintiff on the stipulation, with costs.
Concur : Parker, Ch. J., Gray, Haioht, Martin, Vann,
Cullen and "Werner, JJ.
Brian G. Hughes, Appellant, v. The Mayor, Aldermen and
Commonalty of the City of New York, Respondent.
Hughe* v. Mayor, etc., of New York, 84 App. Div. 347, affirmed.
(Argued October 21, 1903; decided November 10, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered June
22, 1903, affirming a judgment in favor of defendant entered
upon a verdict.
Z. Zqftin Kellogg and Alfred C. Pette for appellant.
George L. JZives, Corporation Counsel (Theodore Connoly
and Chase MeUen of counsel), for respondent.
Judgment affirmed, with costs, on opinion below.
Concur : Parker, Ch. J., Gray, Haight, Martin, Vann,
Cullen and Werner, JJ.
586 MEMORANDA,
MaoKnight Flintio Stone Company, Appellant, v. The City
of New York et al., Respondents. (Actions 1 and 2.)
MacKnight Flintic Stone Go. v. City cf New York, 78 App. Div. 640, 641,
affirmed.
(Argued October 22, 1908; decided November 10, 1908.)
Appeals from judgments of the Appellate Division of the
Supreme Court in the first judicial department, entered
January 20, 1903, affirming judgments in favor of defend-
ants entered upon dismissals of the complaints by the court
on trial at Special Term.
Z. LajUn Kellogg and Alfred C. Pette for appellant
Louis Marshall for respondents.
Judgments affirmed, with costs ; no opinion.
Concur : Parker, Ch. J., Gray, Haight, Martin, Vann,
Cullen and Werner, JJ.
William Weidman, Appellant, v. The City of New York,
Respondent.
Weidman v. City of New York, 84 App. Div. 821, affirmed.
(Argued October 22, 1903; decided November 10, 1908.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered June
23, 1903, affirming a judgment in favor of defendant entered
upon a dismissal of the complaint by the court at a Trial
Term.
W. M. Mosebault for appellant.
George Z. Jlives, Corporation Counsel {Theodore Connelly
of counsel), for respondent.
Judgment affirmed, with costs ; no opinion.
Concur : Parker, Ch. J., Gray, Haight, Martin, Vann,
Cullen and Werner, JJ.
MEMORANDA. 587
Thomas J. McCabe, Appellant, v. The City of New York,
Respondent.
McCabe v. City of New York, 77 App. Div. 687, affirmed.
(Submitted October 22, 1908; decided November 10, 1908.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered
December 17, 1902, reversing a judgment in favor of plaintiff
entered upon a verdict directed by the court and granting a
new trial.
Isidore S. L Chirurg for appellant.
George L. Hives, Corporation Counsel {Theodore Connol/y
and Chase Mellen of counsel), for respondent.
Order affirmed and judgment absolute ordered for defend-
ant on the stipulation, with costs ; no opinion.
Concur : Parker, Ch. J., Gray, Haioht, Martin, Vann,
Cullen and "Werner, JJ.
In the Matter of the Accounting of Peter Rose, as Executor
of Philip B. Rose, Deceased, Appellant.
Catherine M. Rose et al., Respondents.
Matter of Bote, 75 App. Div. 615, affirmed.
(Submitted October 22, 1908; decided November 10, 1908.)
Appeal from an order of the Appellate Division of the
Supreme Court in the third judicial department, entered July
17, 1902, which affirmed a decree of the Rensselaer County
Surrogate's Court surcharging the account of Peter Rose, as
executor of Philip B. Rose, deceased.
J. A. Cipperly for appellant.
Clarence W. Betts for respondents.
Order affirmed, with costs ; no opinion.
Concur : Parker, Ch. J., Gray, Haioht, Martin, Vann,
Cullen and Werner, JJ.
588 MEMORANDA.
Hutchinson Southgate, as Trustee under the Will of Charles
L. R. Hutchinson, Deceased, Appellant, Impleaded with
Another, v. The Continental Trust Company of the City
op New York et al., Respondents, and Renee C. Southgate
et al., Appellants and Respondents.
Southgate v. Continental Trust Co., 74 App. Div. 150. affirmed.
(Argued October 22, 1908; decided November 10, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered Octo-
ber 17, 1902, modifying and affirming as modified a judgment
of Special Term construing the will of Charles L. R. Hutchin-
son, deceased.
O. J. Wells for appellant.
Perdval S. Menken for Henry Southgate, as trustee for
Harriet Whitraore, appellant and respondent.
Sherman Evarte for Harriet A. Whitmore, appellant and
respondent.
Judgment affirmed, without costs, on opinion of Patterson,
J., below.
Concur : Parker, Ch. J., Gray, IIaight, Martin, Vann,
Cdllen and Werner, JJ.
Augustus H. Skillin, as Trustee of David Maibrunn, a
Bankrupt, Respondent, v. David Maibrunn et al., Appel-
lants, Impleaded with Others.
Skillin v. Maibrunn, 75 App. Div. 588, affirmed.
(Argued October 23, 1903; decided November 10, 1903.)
Appeal from a judgment, entered January 23, 1903, upon
an order of the Appellate Division of the Supreme Court in
the first judicial department, modifying and affirming as
modified a judgment in favor of plaintiff entered upon a
decision of the court on trial at Special Term.
MEMORANDA. 589
Jacob Fromme for appellants.
Charles Goldzier and Louis J. Vorhaus for respondent.
Judgment affirmed, with costs ; no opinion.
Concur : Parker, Ch. J., Gray, H aight, Martin, Vann,
Cullen and Werner, JJ.
John E. Brandeoee, as Executor of Mary E. Hackett,
Deceased, Respondent, v. The Metropolitan Life Insur-
ance Company, Appellant.
Brandegee v. Metropolitan L. Ins. Co., 78 App. Div. 629, affirmed.
(Argued October 26, 1903; decided November 10, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
January 5, 1903, affirming a judgment in favor of plaintiff
entered upon a verdict and an order denying a motion for a
new trial.
J. W. Rayhill for appellant.
F. G. Fincke for respondent.
Judgment affirmed, with costs ; no opinion.
Concur : Parker, Ch. J., Gray, O'Brien, Haight, Mar-
tin, Cullen and Werner, JJ.
George N. Seger, as Administrator of the Estate, of Louisa
Sohaeffler, Deceased, Respondent, v. The Farmers'
Loan and Trust Company, as Substituted Trustee under
the Will of Caroline Wildberger, Deceased, Appellant,
Impleaded with Another.
Seger v. Farmers' Loan db Trust Co., 73 App. Div. 293, reversed.
(Argued October 26, 1903; decided November 10, 190B.)
Appeal from a judgment, entered November 24, 1902,
upon an order of the Appellate Division of the Supreme
Court in the first judicial department, affirming an interlocu-
590 MEMORANDA.
tory judgment in favor of plaintiff entered upon a decision of
the court on trial at Special Term.
James F. Horan for appellant.
John C. Gulick for respondent.
Judgment reversed and new trial granted, costs to abide
event, on dissenting opinions of Ingraham and Lauohlin, J J.,
below.
Concur : Parker, Ch. J., Gray, O'Brien, Haight, Mar-
tin, Cullen and "Werner, JJ.
Otto Young, an Infant, by Mathilde Young, his Guardian
ad Litem, Appellant, v. Eugene Dietzgen Company,
Respondent, Impleaded with Another.
Young y. Eugene Dietegen Co., 72 App. Div. 618, affirmed.
(Argued October 27, 1908; decided November 10, 1908.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered June
7, 1902, affirming a judgment in favor of defendant entered
upon a dismissal of the complaint by the court at a Trial
Term.
John J. Schwartz and David Burr Luckey for appellant.
W. W. MacFarland for respondent.
Judgment affirmed, with costs ; no opinion.
Concur : Parker, Ch. J., Gray, O'Brien, Haight, Martin,
Cullen and Werner, JJ.
Jeannie Z. Leggat, Respondent, v. Marietta Leggat, as
Executrix of Richard J. Leggat, Deceased, Appellant.
Leggat v. Leggat, 79 App. Div. 141, affirmed.
(Argued October 27, 1903; decided November 10, 1903.)
Appeal from a judgment, entered February 11, 1903, upon
an order of the Appellate Division of the Supreme Court in
MEMORANDA. 591
the second judicial department, overruling defendant's excep-
tions ordered to be heard in the first instance by the Appellate
Division and denying a motion for a new trial.
WiUiam A. Keener and A. Delos Knedcmd for appellant.
Joseph A. Burr and Michael Furst for respondent.
Judgment affirmed, with costs on opinion below.
Concur : Parker, Ch. J., Gray, O'Brien, Haight, Martin,
Oullen and Werner, JJ.
Caroline F. Rundell, as Administratrix of the Estate of
Eliza S. Rundell, Deceased, Respondent, v. John P.
Swartwout, Appellant.
RundeU v. Swartwout, 78 App. Div. 628, affirmed.
(Argued October 27, 1908; decided November 10, 1008.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
December 8, 1902, affirming a judgment in favor of plaintiff
entered upon a verdict and an order denying a motion for a
new trial.
A. B. Steele for appellant.
George W. Ward for respondent.
Judgment affirmed, with costs ; no opinion.
Concur : Parker, Ch. J., Gray, O'Brien, Haioht, Mar-
tin, Cullen and Werner, JJ.
Ella G. Libby, Appellant, v. Edmund Van Derzee et al.,
Respondents.
Libby v. Van Derzee, 80 App. Div. 494, affirmed.
(Argued October 27, 1908; decided November 10, 1908.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the second judicial department, entered
April 1, 1903, affirming a judgment in favor of defendants
592 MEMORANDA.
entered upon a dismissal of the complaint by the conrt on
trial at Special Term.
J. J. Bennett for appellant.
WUliam D. GaiUard for respondents.
Judgment affirmed, with costs ; no opinion.
Concur : Parker, Ch. J., Gray, O'Brien, Haight, Mar-
tin, Cullen and Werner, J J.
Thomas Connors, Respondent, v. Michael Noone, as Trustee
under the Will of Anne Tresnan, Deceased, Appellant.
Connors v. Noone, 84 App. Div. 632, affirmed.
(Submitted October 28, 1903; decided November 10, 1008.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
May 11, 1903, affirming a judgment in favor of plaintiff
entered upon a decision of the court on trial at Special Term.
KHhy & JVorris for appellant.
John N. Carlisle for respondent.
Judgment affirmed, with costs ; no opinion.
Concur : Parker, Ch. J., Gray, O'Brien, Haight, Mar-
tin, Cullen and Werner, JJ.
In the Matter of the Accounting of Rat Semon Hatch, as
Executor of Elam A. Hatch, Deceased, Appellant.
Security Trust Company, as Substituted Trustee under the
Will of Laura A. Hatch, Deceased, et al., Respondents.
Matter of Hatch, 75 App. Div. 609, affirmed.
(Argued October 28, 1903; decided November 10, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the fourth judicial department, entered
MEMORANDA. 593
July 8, 1902, which affirmed a decree of the Monroe County
Surrogate's Court settling the accounts of Ray Semon Hatch,
as executor of Elam A. Hatch, deceased.
Clarence W. McKay for appellant.
Hiram R. Wood, William, A. Sutherland and H. B. Ilal-
lock for respondents.
Order affirmed, with costs to respondents against appellant
personally ; no opinion.
Concur : Parker, Ch. J., Gray, O* Brien, Haight, Mar-
tin, Cullen and Werner, JJ.
The Twelfth Ward Bank of the City of New York,
Respondent, v. Frederick If. Schauffler, as Trustee of
Antonio Rasines, a Bankrupt, Appellant, and Pedro
Antonio Rasines et al., as Executors of Amelia F. Rasines,
Deceased, Respondents.
Twelfth Ward Bank v. Samuels, 71 App. Div. 168, affirmed.
(Argued October 29, 1903; decided November 10, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered April
19, 1902, affirming a judgment in favor of plaintiff entered
upon a decision of the court on trial at Special Term.
Hubert E. Rogers for appellant.
Charles W. Dayton and Joseph E. Bnllen for plaintiff,
respondent.
Charles P. Rogers for defendants, respondents.
Judgment affirmed, with costs ; no opinion.
Concur : Parker, Ch. J., Gray, O'Brien, Haight, Mar-
tin, Cullen and Werner, JJ.
38
594 MEMORANDA.
May Irene Lafferty, an Infant, by "William H. Laffebty,
her Guardian ad Litem, Respondent, v. Third Avenue
Railroad Company, Appellant.
Lafferty v. Third Ate. R. R. Co., 85 App. Div. 592, affirmed.
(Argued October 80, 1903; decided November 10, 1908.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered July
18, 1903, affirming a judgment in favor of plaintiff entered
upon a verdict and an order denying a motion for a new trial.
Charles F. Brown, Bayard II Ames fcnd Henry A. Rob-
inson for appellant.
Albert A. Wray for respondent.
Judgment affirmed, with costs; no opinion.
Concur : Parker, Ch. J., Gray, O'Brien, Haioht, Mar-
tin, Cullen and Werner, JJ.
The City of Buffalo, Appellant, v. The Delaware, Lacka-
wanna and Western Railway Company, Respondent.
City of Buffalo v. belaware, L. & W. Ry. Co., 68 App. Div. 488, appeal
withdrawn.
(Argued November 16, 1908; decided November 17, 1908.)
Motion to withdraw part of appeal from judgment of the
Appellate Division of the Supreme Court in the fourth
judicial department, entered February 19, 1902, which affirmed
so much of a judgment of the court on trial at an Equity Term
as was in favor of the defendant and reversed so much of m
said judgment as was in favor of plaintiff and granted a new
trial.
The motion was made upon the ground that the appeal from
that part of the judgment reversing on the law and the facts
and granting a new trial was taken inadvertently, plaintiffs
counsel not having in mind the provision of law that the
Court of Appeals has no jurisdiction to review where dis-
puted questions of law are involved.
MEMORANDA. 595
Charles L. Feldman, Corporation Counsel {Edward Z.
Jung of counsel), for motion.
John G. MUburn opposed.
Motion granted upon payment of $150, and the argument
of the appeal remaining in this court is set down for the third
Monday of January next.
Henry A. Episoopo, Respondent, v. The Mayor, Aldermen
and Commonalty of the City of New York, Appellant, et
al., Respondents.
(Submitted November 16, 1903; decided November 17, 1908.)
Motion to amend remittitur. (See 176 N. Y. 572.)
Motion granted and remittitur amended so as to allow costs
to attorneys who separately appeared and filed briefs in this
court.
John Traoey Langan, Respondent, v. Supreme Council
American Legion of Honor, Appellant.
(Submitted November 9, 1903; decided November 17, 1962.)
Motion for reargument denied, with ten dollars costs. (See
174 N. Y. 266.)
In the Matter of the Probate of the Will of Robert E. Hop-
kins, Deceased.
Robert E. IIopkins, Jr., Appellant ; Fanny W. Hopkins
et al., Respondents.
Appeal. — When Appellate Court May Make Order Directing
Trial by Jury op Questions op Fact. Under section 2588 of the Code
of Civil Procedure an appellate court must "make an order directing
the trial by a jury of the material questions of fact arising upon the
issues between the parties," where its reversal or modification of a decree
is founded upon a question of fact, and it may do it in any other case
where, in its opinion, it would seem that the ends of justice might be
best promoted by such a course.
(Submitted October 5, 1903; decided November 17, 1903.)
596 MEMORANDA.
Motion for reargument. (See 172 X. Y. 360.)
Joseph Middlebrook for motion.
Clarence S. Davison, Charles Blandy and Andrew J. Ship-
man opposed.
Parker, Ch. J. The motion for reargument must be
denied, without costs, on the ground that the question pre-
sented is no longer open for discussion in this court. In
reported and unreported cases we have often decided — too
often to now discuss the question — that since the enactment
of the statute, now to be found in section 25 S8 of the Code,
an appellate court must "make an order directing the trial
by a jury of the material questions of fact arising upon the
issues between the parties" where the reversal or modification
of a decree by the appellate court is founded upon a question
of fact, and that the appellate court may do it in auy other
case where, in its opinion, it would seem that the ends of jus-
tice might be best promoted by such a course.
O'Brien, Bartlett, IIaight, Yann, Cullen and Werner,
JJ., concur.
Motion denied, without costs.
Rochester and Lake Ontario Water Company, Respondent,
v. The City of Rochester, Appellant.
(Submitted November 9, 1903; decided November 17, 1903.)
Motion for reargument denied, with ten dollars costs. (See
176 N. Y. 36.)
A. B. Farquiiar Company, Limited, Respondent, v. Monroe
Trce8dell, Appellant.
(Submitted November 9, 1903; decided November 17, 1903.)
Motion for reargument denied, with ten dollars costs. (See
176 N. Y. 547.)
MEMORANDA. 597
James A. O'Brien, as Administrator of the Estate of Thomas
J. O'Brien, Deceased, Appellant, v. The Supreme Council
Catholic Benevolent Legion, Respondent.
OBrien v. Supreme Council C. B. L.% 81 App. Div. 1, affirmed.
(Argued October 29, 1903; decided November 17, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered in
favor of defendant April 8, 1903, upon the submission of a
controversy under section 1279 of the Code of Civil
Procedure.
Rufus O. MaZtby for appellant.
John C. MeGicire for respondent.
Judgment affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., Gray, O'Brien, Martin and
Werner, JJ. Dissenting : Haight and Cullen, JJ.
In the Matter of the Accounting of D. McLeod Gawne, as
Surviving Executor of Ellen O'Reilly, Deceased.
Edward A. Reilly, Appellant; Mary E. Reilly,
Respondent.
Matter of Gawne, 82 App. Div. 374, affirmed.
(Argued October 28, 1903; decided November 17, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the second judicial department, entered
April 24, 1903, which reversed a decree of the Kings County
Surrogate's Court construing the will of Ellen O'Reilly,
deceased, and settling the accounts of D. McLeod Gawne, as
surviving executor thereunder.
Henry A. Forster for appellant.
Albert R. Moore for respondent.
Order affirmed, with costs, on opinion below.
598 MEMORANDA.
Concur : Parker, Ch. J., Gray, Haight, Martin, Cullen
and Werner, JJ.
O'Brien, J. (dissenting). This proceeding was for a judicial
settlement and accounting of the executor of the will of Ellen
O'Reilly, who died in July, 1900, leaving a will. The only
question involved is the meaning and construction to be given
to the third clause of the will. All the estate was bequeathed
to the executors, in trust, to pay the income of her husband
during his life and then disposed of by the third clause, as
follows :
" Third. It is my will, and I hereby direct that upon the
death of my said husband, James O'Reilly, my surviving
executor shall divide the principal sum of my estate among
my sons, James T. Reilly, William F. Reilly, Edward A.
Reilly, and my adopted soii6, William O'Reilly and Franklyn
O'Reilly, children of Franklyn Fletcher, and legally adopted
by my husband and myself in manner following, that is to
say: to my son James T. Reilly, one equal one-fifth part;
to my son William F. Reilly, one equal one-fifth part in trust
for his wife Sarah A. Reilly ; to my son Edward A. Reilly,
one equal one-fifth part in trust for his wife Mary E. Reilly ;
to my adopted son William O'Reilly, one equal one-fifth part,
and to my adopted son Franklyn O'Reilly, one equal one-fifth
part."
This appeal involves only the share of the son Edward
A. Reilly, and the question is whether it should be distributed
to him as legatee absolutely or to his wife. The surrogate
held that he was entitled to it as legatee absolutely under the
will, but the learned Appellate Division reversed the decree
and awarded the share to the wife, and the husband appeals.
If the clause of the will in question creates a trust in the
husband in favor of the wife that the courts are competent to
enforce, then the husband would take the share as trustee and
not the wife as legatee. If, on the other hand, there was no
trust, but an absolute gift of the remainder, the question is, to
whom was the gift made by the terms of the will, whether
the husband or the wife. There are no words of absolute gift
to the wife, but there are words of absolute gift to the hus-
MEMORANDA. 599
band. The testatrix directed that the remainder be " divided
among my son*" naming the contestant as one of them, there
being five in all. She directed that one equal one-fifth part
be divided to the son Edward A. Reilly in trust for his wife,
and it is said that these latter words destroy the absolute char-
acter of the gift to the husband and convert it into an abso-
lute gift to the wife. If I understand a recent decision of
this court there was a good trust in this case created in the
husband for the benefit of the wife. (CoUister v. Fassitt^
163 N. Y. 281.) I am unable to perceive any distinction
between that case and the one at bar. In the present case the
language, which is added to words of absolute gift, is much
clearer and more satisfactory than in the case cited, and if
there is a trust the share should go to the husband as trustee
and not to the wife as a beneficiary of a void trust. Section
73 of the Real Property Law, in regard to certain trusts of
real property, has no application to trusts of personal prop-
erty. {Holmes v. Mead, 52 N. Y. 332 ; Matter of Carpen-
ter, 131 N. Y. 86.)
In my opinion, this clause of the will should be construed as
an absolute bequest of one-fifth of the remainder to the hus-
band, and so the surrogate held. The case is one in which
there are clear words of absolute gift to the husband, and their
legal effect is not changed by the subsequent words in regard
to a trust, which have no legal force or effect, since it is
admitted that they create no trust or estate whatever, and the
clause must, therefore, be construed in the same way as if
these words were not used at all. It is the case of an abso-
lute gift, followed by qualifying, directory or precatory
words, which are wholly ineffectual in law, and in this state
have always been rejected in the construction of wills.
A brief reference to some of the cases will show how con-
sistently the rule has been followed in this state. In Fooae v.
Whitmore (82 N. Y. 405) the provision of the will was : " I
* * * give and bequeath all my property, real and per-
sonal, to my beloved wife, Mary, only requesting her, at the
close of her life, to make such disposition of the same among
my children and grandchildren as shall seem to her good."
It was held that the gift to the wife was absolute, that the
600 MEMORANDA.
concluding words amounted to a mere suggestion and did not
create a trust or any charge upon the estate. In Clarke v.
Leupp (88 N. Y. 228) the testator declared that he deemed
it his duty to make a will for the benefit and protection of
his wife and two children, and then proceeded as follows : " I
do, therefore, make this my last will and testament, giving
and bequeathing to my wife Caroline all my property, real
and personal, * * * and do appoint my wife * * *
my true and lawful attorney and sole executrix of this my
will, to take charge of my property after my death, and
retain or dispose of the same for the benefit of herself and
children above named." It was held that the wife took an
absolute title to all of the testator's estate ; that it was not
intended by the words succeeding to limit or cut down the
absolute gift and that there was no trust created. In Law-
rence v. Cooke (104 N. Y. 632), after a gift of the residuary
estate to the testator's daughter and her heirs and assigns for-
ever, the following words were added: "I commit my
granddaughter * * * to the charge and guardianship of
my daughter. * * * I enjoin upon her to make such
provision for said grandchild out of my residuary estate
* * * in such manner at such times and in such amounts
as she may judge to be expedient and conducive to the wel-
fare of said grandchild, and her own sense of justice and
christian duty shall dictate." It was held that no trust was
created, nor any charge upon the property given by the will
to the daughter ; that the legatee took an absolute gift and
the provision made for the granddaughter was left wholly to
her discretion as to the amount and manner, as well as the
time it should be made, and that this discretion could not be
interfered with by the court. In Matter of Gardner (140 N.
Y. 122) the testator gave his residuary estate to his wife to
have and to hold the same to her and her assigns forever, pro-
vided, however, that if any part of it should remain unex-
pended or undisposed of at her death, this he gave to his son,
his heirs and assigns. lie then stated that it was his desire
that his wife should not dispose of any of the estate by will in
such way that what might remain at her death would go
out of his own family and blood relations. The testator had
MEMORANDA. 601
one child, a son by a former wife. The widow died leaving
a will which disposed of so much of the residuary estate
as remained at her death, giving a large portion thereof
to the son and also one-fourth of her residuary estate after
the expiration of a life estate therein of another fourth to
a sister of her husband. It was held that the estate of the
wife was not limited or qualified by the concluding paragraph,
expressing the testator's expectation and desire. In Clay v.
Wood (153 N. Y. 134) the testator gave certain real and per-
sonal property to his wife to have and to hold unto her and
her heirs, executors, administrators and assigns forever, with
legacies to others, which were declared not to be a charge
upon the property given to the wife. He then gave all the
residue of the estate to the wife and to her heirs, executors,
administrators and assigns forever, followed by these words :
"And it is my request that my said wife do sustain,
provide for and educate Lucretia, the daughter of my said
adopted daughter Josephine. And it is my further desire
and request that my wife do make the said Lucretia, Josephine
and my nephews and nieces, the children of my brothers C.
and G., joint heirs after her death in the said estate which by
this will I have bequeathed to my said wife." It was held
that the testator intended an absolute gift to the wife, except
the legacies to others, with an absolute right of disposition,
and that such gift was not qualified by the subsequent pre-
catory clause, and that, hence, no trust or power in trust in
favor of the persons mentioned in that clause was created
thereby.
In the case at bar the words in regard to a trust, following
words of absolute gift to the husband, amount to no more
than the expression of a desire, or a wish, on the part of the
testatrix that the gift was to be enjoyed by the wife as well
as the husband. It is a familiar rule that a will should be con-
strued, whenever possible, in such a way as to vest the estate in
the testator's children, or in persons of his own blood. Apply-
ing that rule and the other considerations referred to above
to this case, it is difficult to conclude that the intention of
the testatrix was to pass over the claims of one of her own
children, leaving him nothing whatever, and to vest one-fifth
602 MEMORANDA.
of the estate in his wife, who was not of her own blood.
The more reasonable construction is that the mother intended,
as her words fairly imply, to make an absolute gift to her son,
in which the wife should be recognized or benefited. No
trust having been created in her favor, the words used in that
respect must be regarded as ineffectual and precatory, having
no force or effect in the disposition of the remainder.
I think the order of the Appellate Division should be
reversed and the decree of the surrogate affirmed, with costs
to both parties to this appeal payable out of the estate.
In the Matter of the Application of the George B. "What
Drug Company for Voluntary Dissolution.
Benjamin S. Comstock et al., Appellants ; Henry K. Hioks,
as Receiver, Respondent.
Matter of Wrap Drug Co., 88 App. Div. 684, affirmed.
(Argued November 9, 1908; decided November 24, 1908.)
Appeal from an order of the Appellate Division of the
Supreme Court in the second judicial department, entered
May 1, 1903, which affirmed an order of Special Term deny-
ing a motion to vacate and set aside an order dissolving the
George B. Wray Drug Company.
Waldo G. Morse for appellants.
Ralph Earl Prime, Jr., for respondent.
Order affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., O'Brien, Bartlett, Haioht,
Vann, Cullen and Werner, JJ.
The People of the State of New York ex rel. "William H.
Steers, Appellant, v. The Department of Health of the
City of New York, Respondent.
People ex rel. Steers v. Department of Health, 86 App. Div. 521, affirmed.
(Argued November 9, 1903; decided November 24, 1908.)
Appeal from an order of the Appellate Division of the
Supreme Court in the second judicial department, entered
MEMORANDA. 603
July 30, 1903, which affirmed an order of Special Term dis-
missing an alternative writ of mandamus requiring the defend-
ant to 6how cause why the relator should not be restored to
the position of sanitary inspector in the department of health
of the city of New York.
George W. McKenzw and George P. Beebe for appellant.
George L. Bives, Corporation Counsel (James MoKcen of
counsel), for respondent.
Order affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., O'Brien, Bartlett, Haioht,
Vasn, (Jullun and Werner, JJ.
In the Matter of the Accounting of William S. Holmes, as
Executor of Mary E. Holmes, Deceased, Appellant.
John D. Gutches et al., Respondents.
Matter of Holme*, 79 App. Div. 264, affirmed.
(Argued November 9, 1903; decided November 24, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the third judicial department, entered Jan-
uary 29, 1903, which affirmed a decree of the Chenango County
Surrogate's Court settling the accounts of William S. Holmes,
as executor of Mary E. Holmes, deceased.
Edmund B. Jenks for appellant.
Nelson P. Bonney and E. E. Mellon for respondents.
Order affirmed, with costs ; no opinion.
Concur : O'Brien, Bartlett, Haioht, Vann, Cullen and
Werner, JJ. Absent : Parker, Ch. J.
604 MEMORANDA.
In the Matter of the Judicial Settlement of the Estate of
Mary E. Holmes, Deceased.
William S. Holmes, Appellant; John D. Gctches et al.,
Respondents.
Matter of Holmes, 79 App. Div. 267, affirmed.
(Argued November 9, 1903; decided November 24, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Coiirt in the third judicial department, entered
January 29, 1903, which affirmed an order of the Chenango
County Surrogate's Court adjudging the appellant herein
guilty of contempt of court.
Edmund B. Jenks for appellant.
NeUon P. Bonney and K E Mellon for respondents.
Order affirmed, with costs ; no opinion.
Concur : O'Brien, Bartlett, Haight, Vann, Cullen and
Werner, JJ. Absent : Parker, Ch. J.
The People of the State op New York ex rel. George A.
Gress, Appellant, v. George Hilliard, as Special Deputy
Commissioner of Excise, et al., Respondents.
People ex rel. Gress v. Hilliard, 85 App. Div. 507, affirmed.
(Argued November 9, 1903; decided November 24, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered July
16, 1903, which affirmed an order of Special Term dismissing
a writ of certiorari to review the action of the defendant,
special deputy commissioner of excise, in refusing to issue a
liquor tax certificate to the relator.
Frederic E. Perham, for appellant.
Herbert H. Kellogg for respondents.
Order affirmed, with costs, on opinion below.
Concur : Parker, Ch. J. : O'Brien, Bartlett, Haight,
Vann, Cullen and Werner, J J.
MEMORANDA. 605
Solomon C. Brott et ah, Plaintiffs, v. Alice I. Davidson
et al., Respondents.
Michael F. O'Connor, Appellant.
Brott v. Davidson, 87 App. Div. 29, appeal dismissed.
(Submitted November 10, 1903; decided November 24, 1003.)
Appeal from an order of the Appellate Division of the
Supreme Court in the third judicial department, entered
September 21, 1903, which affirmed an order of Special Term
directing the appellant herein to pay to the respondents a sum
of money received by said appellant while acting as attorney
for plaintiffs in an action to foreclose a mortgage.
IT. D. Bailey for appellant.
J. W. Atkinson for respondents.
Appeal dismissed, with costs ; no opinion.
Concur : Parker, Ch. J. ; O'Brien, Bartlett, IIaight,
Vann, Cullex and Werner, J J.
The People of the State of New York ex rel. John C.
McGee, Appellant, v. John N. Partridge, as Police Com-
missioner of the City of New York, Respondent.
People ex rel. McGee v. Partridge, 84 App. Div. 641, affirmed.
(Argued November 10, 1908; decided November 24, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered June
24, 1903, which affirmed the proceedings of the defendant in
dismissing the relator from the police force of the city of
New York.
Ilyacinthe Ringrose for appellant.
George Z. Hives, Corporation Counsel {Theodore Connoly
and Terence Farley of counsel), for respondent.
Order affirmed, with costs ; no opinion.
Concur : Parker, Ch. J., Haight, Cullen and Werner,
J J. Dissenting: O'Brien, Bartlett and Vann, JJ.
606 MEMORANDA.
The People of the State op New York ex rel. Walter 6.
Harris, Appellant, v. Dudley Gill, as Sheriff of Warren
County, Defendant.
Minerva Sooville, as Administratrix of the Estate of George
It. Sooville, Deceased, Respondent.
People ex rel. Harris v. Gill, 85 App. Div. 192, affirmed.
(Submitted November 10, 1903; decided November 24, 1908.)
Appeal from an order of the Appellate Division of the
Supreme Court in the third judicial department, entered
July 6, 1903, which reversed an order of the Warren County
Court discharging the relator from the custody of the defend-
ant and remanded said relator to custody.
T. I). Trumbull, Jr., for appellant.
Erskvae C. Rogers for respondent.
Order affirmed ; no opinion.
Concur: Parker, Ch. J., O'Brien, Bartlett, Haight,
Vann, Cullen and Werner, JJ.
The People of the State of New York ex rel. Charles F.
Willi ams, Appellant, v. John T. McDonough, as Secretary
of State, et al., Constituting the Printing Board of the
State of New York, et al., Eespondents.
People ex rel. Williams v. McDonough, 85 App. Div. 162, affirmed.
Argued November 10, 1908; decided November 24, 1908.)
Appeal from an order of the Appellate Division of the
Supreme Court in the third judicial department, entered July
1, 1903, which confirmed the determination of the State
Printing Board in awarding a contract for department print-
ing to the defendant Albany Evening Union Company.
Lewis E. Carr for appellant.
J. Newton Fiero for respondents.
Order affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., O'Brien, Bartlett, Haight,
Vann, Cullen and Werner, JJ.
MEMORANDA. 607
In the Matter of Anna. W. Ferris, an Incompetent Person.
George B. Mead, Jr., as Executor of Anna W. Ferris,
Deceased, Appellant.
Matter ofFbrris, 86 App. Div. 559, affirmed.
(Argued November 10, 1903; decided November 24, 1903.)
Appeal, by permission, from an order of the Appellate
Division of the Supreme Court in the second judicial depart-
ment, entered August 1, 1903, which affirmed an order of
Special Term substituting the appellant herein in place of
Anna W. Ferris, deceased, in a proceeding for the appoint-
ment of a committee of said Anna W. Ferris and reviving and
continuing the proceeding.
The following question was certified : " Had the Supreme
Court jurisdiction to make the order dated the 31st day of
March, 1903, and each and every part thereof ? "
George H. Fletcher for appellant.
Milton A. Fowler and Irving Wasfthum for respondent.
Order affirmed, with costs, and question certified answered
in the affirmative ; no opinion.
Concur: Parker, Ch. J., O'Brien, Bartlett, Haight,
Vann, Cullen and Werner, J J.
Augusta Stevens, as Administratrix of the Estate of John
Stevens, Deceased, Respondent, v. Union Railway Com-
pany of New York City, Appellant.
Stevens v. Union Railway Go,, 75 App. Div. 602, affirmed.
(Argued October 28, 1903; decided December 1, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered
December 1, 1902, modifying and affirming as modified a
judgment in favor of plaintiff entered upon a verdict and an
order denying a motion for a new trial.
608 MEMORANDA.
Charles F. Broxon and Henry A. Robinson for appellant.
Thomas J. O'Neill and Cornelius J. Early for respondent.
Judgment affirmed, with costs ; no opinion.
Concur : IIaight, Martin, Vann and Werner, JJ. Dis-
senting : Parker, Ch. J., Gray and Cullen, JJ.
In the Matter of the Accounting of John A. Merritt, as
Executor of William W. Whitmore, Deceased.
Henry Whitmore, Appellant; Herbert W. Weld et al.,
.Respondents.
Matter of Merritt, 86 App. Div. 179, affirmed.
(Submitted November 11, 1903; decided December 1, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the fourth judicial department, made July
7, 1903, which modified and affirmed as modified a decree of
the Niagara County Surrogate's Court settling the accounts of
John A. Merritt as executor and directing the distribution
of the estate of William W. Whitmore, deceased.
Washington IL Ransom for appellant.
S. Wallace Dempsey for respondents.
Order affirmed, with costs, on opinion below.
Concur: Parker, Ch. J., O'Brien, Bartlett, Haight,
Vann, Ccllen and Werner, J J.
The People of the State of New York ex rel. Walter M.
Leazenbee, Appellant, v. John N. Partridge, as Police
Commissioner of the City of New York, Respondent.
People ex rel. Leazenbee v. Partridge, 83 App. Div. 643, affirmed.
(Argued November 11, 1903; decided December 1, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered May
MEMORANDA. 609
28, 1903, which affirmed a determination of the defendant dis-
missing relator from the police force of the city of New York.
Louis J. Grant for appellant.
George L. Hives, Corporation Counsel (Tfieodore ConnoVy
and John W. Hutchinson, Jr., of counsel), for respondent.
Order affirmed, with costs ; no opinion.
Concur: Parker, Ch. J., O'Brien, Bartlett, Haioht,
Vann, Cullen and Werner, JJ.
Charles W. Eckekson, Appellant, v. The City op New
York, Respondent.
Eckerson. v. City of New York, 80 App. Div. 12, affirmed.
(Argued November 11, 1908; decided December 1, 1908.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered
February 11, 1903, reversing a judgment in favor of plaintiff
entered upon a decision of the court at a Trial Term without
a jury and granting a new trial.
George F. Langbein and William J. Walsh for appellant.
George Z. Hives, Corporation Counsel (Theodore Connoly
and Edioard J. McGwire of counsel), for respondent.
Order affirmed and judgment absolute ordered for defend-
ant on the stipulation, with costs, on opinion below.
Concur: Parker, Ch. J., O'Brien, Bartlett, Haioht,
Vann, Cullen and Werner, JJ.
Frederick A. Lyons, Appellant, v. The City of New York,
Respondent.
Lyons v. City of New York, 82 App. Div. 306, affirmed.
(Argued November 11, 1903; decided December 1, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered May
14, 1903, affirming a judgment in favor of defendant entered
39
i
J
610 MEMORANDA.
upon a dismissal of the complaint by the court at a Trial Term
without a jury.
Franklin Pierce for appellant.
George Z. Hives, Corporation Counsel {Theodore Connoly
and W. £. CroweU of counsel), for respondent.
Judgment affirmed, with costs, on the sole ground that the
salary was not increased ; no opinion.
Concur: Parker, Ch. J., O'Brien, Bartlett, Haight,
Vann, Cullen and Werner, J J.
Edward Wagner, by his Guardian ad Litem, Louis Ehr-
hardt, Respondent, v. Metropolitan Street Railway
Company, Appellant.
Wagner v. Metropolitan Street Ry. Co., 79 App. Div. 591, affirmed.
(Argued November 12, 1908; decided December 1, 1908.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered Feb-
ruary 14, 1903, affirming a judgment in favor of plaintiff
entered upon a verdict and an order denying a motion for a
new trial.
Charles F. Brown, Arthur Ofner and Henry A. Robin-
son for appellant.
Henry A. Powell for respondent.
Judgment affirmed, with costs, on opinion below.
Concur: Parker, Ch. J., O'Brien, Bartlett, Haight,
Vann, Cullen and Werner, JJ.
James A. Sandles, by his Guardian ad Litem, John Sandles,
Appellant, v. Morris Levenson, Respondent.
Sandles v. Leceiison, 78 App. Div. 306, affirmed.
(Argued November 12, 1903; decided December lf 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the' first judicial department, entered
January 30, 1903, affirming a judgment in favor of defend-
MEMORANDA. 611
ant entered upon a dismissal of the complaint by the court
at Trial Term.
Herbert C. Smyth, Sumner JB. Stiles and Eugene F Sey-
mour for appellant.
Moses FdtensUin for respondent.
Judgment affirmed, with costs ; no opinion.
Concur : Parker, Ch. J., Haight, Vann and Werner, JJ.
Dissenting : O'Brien, Bartlett and Cullen, JJ.
Eva Dickescheid, as Administratrix of the Estate of George
J. Dickescheid, Deceased, Appellant, v. John F. Betz,
Respondent.
Dickescheid v. Betz, 80 App. Div. 8, affirmed.
(Argued November 12, 1903; decided December 1, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the first judicial department, entered March
9, 1903, affirming a judgment in favor of defendant entered
upon a dismissal of the complaint by the court at a Trial Term.
Theodore II. Lord and Ambrose F. MeCahe for appellant
Abram I. Elkus, James C. MeEachen and Carlisle J.
Gleasoti for respondent. %
Judgment affirmed, with costs ; no opinion.
Concur : Bartlett, Haight, Cullen and Werner, JJ.
Dissenting : Parker, Ch. J., and O'Brien, J. Xot voting :
Vann, J.
George Edwin Joseph, as Trustee in Bankruptcy of The
Mutual Mercantile Agency, Appellant, v. Norman C
Raff, Respondent.
Joseph v. Raff, 82 App. Div. 47, affirmed.
(Argued November 16, 1903; decided December 1, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the first judicial department, entered April
18, 1903, reversing a judgment in favor of plaintiff entered
612 MEMORANDA.
upoh a decision of the court on trial at Special Term and
granting a new trial.
Judson /S. Landon, George Edwin Joseph, William Z. Cahn
and Wilson B. Brice for appellant.
William B. Ellison, Walter Z. McCorJcle and Arnold L.
Dams for respondent.
Order affirmed and judgment absolute ordered for defend-
ant on the stipulation, with costs ; no opinion.
Concur: Gray, Bartlett, Haight, Vakn, Gullen and
Werner, J J. Absent : Parker, Ch. J.
Nathan Levy, as Trustee in Bankruptcy of The Prospect
Park Brewery, Respondent, v. Peter IIuwer, Appellant.
Levy v. Huwer, 80 App. Div. 499, affirmed.
(Argued November 16, 1908; decided December 1, 1903.)
Appeal from a judgment of the Appellate Division of the
Supreme Court in the second judicial department, entered April
1, 1903, affirming a judgment in favor of plaintiff entered
upon a verdict and an order denying a motion for a new trial.
Herbert T. Ketcham and Joseph E Owens for appellant.
Charles De Hart Brower and Edward II. Harrison for
respondent.
Judgment affirmed, with costs ; no opinion.
Concur: Gray, Bartlett, Haight, Vann, Cullen and
Werner, JJ. Absent : Parker, Ch. J.
la the Matter of the Probate of the Will of Mary Steiner
Putnam, Deceased.
John R. Putnam, Appellant; Charles II. Sturges et al.,
Respondents.
Matter of Putnam, 75 App. Div. 615, affirmed.
(Submitted November 17. 1908; decided December 1, 1903.)
Appeal from an order of the Appellate Division of the
Supreme Court in the third judicial department, entered July
MEMORANDA. 613
17, 1902, which affirmed a decree of the Saratoga County
Surrogate's Court admitting to probate the will of Mary
Steiner Putnam, deceased.
Edgar T. Bracketty A. Pennington Whitehead and Nash
Rochwood for appellant.
Charles II. Hturge% for respondents.
Order affirmed, with costs ; no opinion.
Concur : Gray, Bartlett, Haioht, Cullen and Werner,
JJ. Not voting : Parkkr, Ch. J., and Vann, J.
Robert Boyd, Appellant, v. The New York Security and
Trust Company, Defendant, and Lizzie II. Daily, as
Executrix of Henry Daily, Jr., Deceased, Respondent.
Boyd v. Daily, 85 App. Div\ 581, affirmed.
(Argued November 17, 1908; decided December 1, 1903.)
Appeal from a judgment of the Appellate Diyision of the
Supreme Court in the first judicial department, entered
August 4, 1903, modifying and affirming as modified a judg-
ment *ln favor of respondent herein entered upon a decision of
the court on trial at Special Term.
Edward W. S. Johnston for appellant.
Lyman E. Warren for respondent.
Judgment affirmed, with costs ; no opinion.
Concur : Parker, Ch. J., Gray, Bartlett, IIaight, Vann,
Cullen and Werner, JJ.
The Twelfth Ward Bank of the City of New York^
Respondent, v. Frederick II. Schauffler, as Trustee of
Antonio Rasines, a Bankrupt, Appellant, and Pedro
Antonio Rasinks et al., as Executors of Amelia F.
Rasines, Deceased, Respondents.
(Submitted November 23, 1903; decided December 1, 1903.)
Motion to amend remittitur. (See 176 X. Y. 593.)
Motion granted and remittitur amended by giving costs to
the Twelfth Ward Bank, the plaintiff, and without costs to
either of the other parties.
INDEX.
ABATEMENT AND REVIVAL.
Continuance of action in state court ^gainst receivers appointed by
federal court after their discharge.
See Practice, 1, 2.
AGENCY.
Of wife a question of fact.
See Husband and Wife.
Restriction of power of life insurance agents. .
See Insurance, 4-6.
ALIENATION.
Unlawful suspension of power of.
See Will, 1.
ANNUITY.
Action to set aside contract of.
See Trial, 3.
APPEAL.
1. Reversal. Rulings upon a trial, even if erroneous, unless of suffi-
cient importance, will not justify the reversal of a judgment. Adams v.
Elwood. ' 106
2. Objection. An objection to evidence upon which a ruling is reserved,
but not made, must be treated as though it had been sustained and an
exception taken. Id.
3. Modification of Judgment. Where, in an action to foreclose a
mechanic's lien, a judgment has been entered which does not give to a
claim the priority over all the other claims to which it is entitled, but
places it last in the order of payment, and the claimant appeals, perfect-
ing his appeal as to some of the parties, but not as to the others, the
judgment should be modified, where it can be done without doing injus-
tice to any of the parties, by givine the claimant priority over those
claimants against whom he perfected the appeal. Hall v. City of New
York. 293
4. Power of Appellate Division to Reverse or Affirm Wholly or Partly —
Code Civ. Pro. § 1817. Where a judgment rendered in an action at law
or in equity consists of distinct parts so separate and independent in
form and nature as to be easily severed and each is in fact a distinct
adjudication, the Appellate Division, in the exercise of a sound discre-
tion, may upon appeal affirm the adjudication not affected by error and
reverse the adjudication which is affected by error and grant a new
trial as to that portion of the issues only, the application of the rule
depending upon the form and nature of the judgment rendered rather
than upon the forum of the action. City of Buffalo v. Delaware, L. dk W.
R. R. Co. 308
5. Briefs of Counsel Should Contain a Fair Statement of Facts. A
fair statement of the facts is essential to a proper presentation of an
appeal. An unfair statement is certain to be discovered and when
discovered affects the force of the entire brief. When the facts are not
open to review they should be stated as found, or as presumed to have
been found. When the facts are to be reviewed it is proper for counsel to
616 INDEX.
APPEAL— Continued.
state them as hq claims they should have been found in accordance with
the weight of evidence, citing the folios where the evidence appears in
the record, but on the crucial points he should also state the testimony
opposed to his theory, so that the court may have before it a faithful
picture of the whole case. A failure to observe these rules increases the
labor of the court and reflects upon the integrity of the brief. People v.
White. 331
6. When Appellate Court May Make Order Directing Trial by Jury of
Question* of Fact. Under section 2588 of the Code of Civil Procedure an
appellate court must "make an order directing the trial by a jury of the
material questions of fact arising upon the issues between the parties,"
where its reversal or modification of a decree is founded upon a question
of fact, and it may do it in any other case where, in its opinion, it would
seem that the ends of justice might be best promoted by such a course.
Matter of Hopkins, 595.
When alleged error in charge on trial for murder cannot be reviewed
without an exception thereto.
See Crimes, 11.
When judgment convicting defendant of murder will not be reversed
in the absence of exceptions.
See Chimes, 13.
APPELLATE DIVISION.
Power of, to reverse of affirm wholly or partly.
See Appeal, 4.
Return to certiorari to review determination of town board made by
majority of board is conclusive upon.
See Certiorari.
ASSESSMENTS.
For local improvements — validity of provisions of city charter restrict-
ing actions to annul.
See Limitation of Actions.
Effect of assessment made while proceeding for condemnation of prop-
erty by city is pending.
See Tax, 1.
ASSIGNMENT.
1. Election of Remedies. Whether or not there has been an election of
remedies is determined by the commencement, not by the result of an
action. Matter of Garver. 386
2. Assignment for Creditors — Res Adjudicata. The commencement
of an action by a judgment- creditor to set aside an assignment for
the benefit of creditors on the ground of fraud does not constitute an
election by him to take in hostility to the assignment within the doctrine
of the election of remedies: and although he is successful as to a portion
of the property transferred to the assignee, if the judgment results in no
benefit to him, he may take under the assignment notwithstanding his
attack upon it, and the judgment constitutes no bar to such relief. Id.
ASSOCIATIONS.
1. Benefit Association — Unreasonable By-Laws Cannot Deprive Members
of their Rights. By-laws of a mutual benefit association, in so far as they
attempt to make the default or misconduct of its own agent and officer in
failing to pay over moneys received for dues aud assessments the default
and misconduct of the members, who pay them precisely as directed therein
INDEX. f 617
ASSOCIATIONS— Continued.
and on account of such default deprive them of their rights as members,
including a forfeiture of their insurance, are unreasonable and void, and
have no effect upon the status of members in good standing. Matter
of Brawn v. Order of Foresters. 132
2. Same. The fact that in such a case, if a suspended member is denied
reinstatement, the constitution and by-laws provide that he may appeal to
various courts or tribunals within the association, and that no member
shall be entitled to bring any civil action or legal proceeding until he shall
have exhausted all the remedies by such appeals, does not debar him from
any remedy or relief in the courts of this state, in a case where the obstacles
to the prosecution of an appeal amount to almost a denial of justice, and
where, if prosecuted, no relief would result therefrom. Id.
BANKDfG.
When payment of deposit to foreign administrator after appointment
of administrator in thiB state discharges debt.
See Executors and Administrators.
BANKRUPTCY.
Discharge in, Not a Defense, or Bar, to Action for Embezzlement and
Misappropriation of Funds — Demurrer to Answer Setting up Same as a
Defense. Where the complaint in an action of conversion alleges that the
defendant did wrongfully and fraudulently embezzle and misappropriate
plaintiff's money, the legal import thereof is that defendant became pos-
sessed of the money in a fiduciary capacity, and, hence, his liability there-
under is a liability expressly excepted, by section 17 of the Bankruptcy
Law of 1898, from debts released by a discharge in bankruptcy, and
defendant's answer setting up his discharge in bankruptcy as a defense,
or bar, to the action is demurrable as insufficient in law upon the face
thereof. Watertown Carriage Co. v. Hall. 813
BENEFIT ASSOCIATIONS.
Unreasonable by-laws cannot deprive members of their rights.
See Associations, 1, 2.
BILLS, NOTES AND CHECKS.
Check drawn by guardian notice to payee that fund belongs to ward.
See Guardian and ]SV*ard.
BOND.
Impairment of indemnitor's rights.
See Principal and Surety.
BRIEFS.
Of counsel on appeal should contain a fair statement of facts.
See Appeal, 5.
BUFFALO (CITY OF).
Power of Commissioners under Grade Crossing Acts to Change General
Plan. Under the Buffalo Grade Crossing Acts (L. 1888, ch. 845; L. 1890,
ch. 255; L. 1892, ch. 853) providing that: 1. The general plan to be
adopted may be amended only in matters of detail. 2. It shall not be
extended beyond the general plan heretofore adopted under which con-
tracts have been entered into. 3. Contracts heretofore or hereafter made
with railroad companies may be changed by agreement between the con-
tracting parties, but not otherwise — where the commissioners in March,
1893, adopted a general plan which provided for no change in the grade
of a railroad running through the city as then constructed and operated,
they cannot compel the railroad company to change the elevation of its
tracks and reconstruct its terminal structures, sidings and switches to
618 . INDEX.
BUFFALO (CITY OF) — Continued.
comply with a plan proposed and adopted in \HW, which i> an extension
of the general plan of 1888. and not a modification, in some details, of
that plan. iMtigh Valley Ry. Co. v. Ad<im. 420
BY-LAWS.
Of benefit association — when cannot deprive members of their rights.
See Associations, 1, 2.
CARE.
Degree of, required in passing excavation in ntreet.
See Negligence, 2.
CAUSE OF ACTION.
Action for damages resulting from conspiracy to wreck corporation
must be brought by corporation.
See Corporations, 1.
Action for damages will not lie between members of two firms having
one member common to both.
See False Representations, 1.
CERTIORARI.
Return to Certiorari to Review Determination of Town Board Made
by Majority of Board Is Conclusive upon Appellate Division — Separate
Return Made by One Member of Board Cannot Be Considered. Where it
appears from the papers and proceedings upon a writ of certiorari, issued
to review the determination of a town board in disallowing a claim
presented thereto, that the only matter in issue was the employment of
the relator by the town board of health to render services as a physi-
cian to certain smallpox patients during a certain period, and the return
made by a majority of the town board specifically denies such employ-
ment and distinctly traverses every allegation of the relator's petition
in that behalf, such return is conclusive upon the Appellate Division and
the writ should be dismissed, notwithstanding one of the town board
made a separate return corroborating the petitioner, since there can be but
one return to a writ of certiorari, unless a second Is directed or permitted
by the court because the first is defective or insufficient in form; and
where a writ of certiorari is issued to review the determination of a board
or body composed of two or more persons the return must be made in
the name of the board or body and may be executed by a majority of
the members thereof; the return of the majority of the members is, there-
fore, the only return which the Appellate Division has the right to con-
sider, and the separate return should be disregarded. People ex rel. Jes-
ter v. Eno. 513
CHAMPERTY.
When Purclmse- Money Mortgage not Champerlous. Judicial sales are
not within the condemnation of the Statute of Champerty (1 R. S.
739. §£ 147, 148; Real Property Law, 1895, ch. 547, § 225); a pur-
chaser of land sold under a decree in a foreclosure action acquires a
perfect title, although at the time the premises are in the actual pos-
session of one claiming title thereto under a tax deed; a mortgage
executed by him on the same day to the plaintiff to secure a part of the
purchase price is not void under the statute since the deed ana the mort-
gage take effect at the same instant, constituting but one act, and the mort-
gagee, to the extent of his mortgaged interest, whether it be considered
a lien or a conditional estate, must be regarded as much a purchaser at
the judicial sale as the mortgagor, and acquires the title not from him
but through him as a mere conduit; the assignee of such purchase-money
mort gage who forecloses it and bids in the premises acquires the title thereto
and may maintain an action of ejectment for their recoverv. Dc Oarrno v.
Phelps. " 455
INDEX. 619
CHARGE.
Not deemed erroneous when too lenient toward defendant on trial for
murder.
See Crimes, 4.
Instruction as to presumption of sanity of defendant on trial for mur-
der— trial court not bound to charge request of counsel where substan-
tially the same proposition has already been charged.
See Crimes, 9-11.
Instruction to jury, on trial for murder.
See Crimes, 17.
Erroneous refusal to charge.
See Negligence, 3.
CHARITIES LAW.
Jurisdiction of New York city magistrate to sentence women to state
reformatory under section 146 thereof.
See Crimes, 24.
CHECKS.
Check drawn by guardian is notice to payee that fund belongs to ward.
See Guardian and Ward.
CHILDREN.
Unlawful omission to provide medical attendance for a minor child.
See Parent and Child, 1-5.
CITIES.
When water company, incorporated for the purpose of supplying water
to towns and villages adjacent to city, may lay its water mains and
pipes through the city.
See Water Works, 1, 6.
CIVIL SERVICE.
New York (City of) — Deputy Tax Commissioner — Office of, Excepted
from Provisions of Section 21 of Civil Service Iaiw, Prohibiting Removal
of Honorably DiscJtarged Volunteer Firemen Therefrom, Except After Hear-
ing on Stated Charges. The office of deputy tax commissioner of the city
of New York is an office excepted, by the language thereof, from the
provisions of the Civil Service Law (L. 1899, ch. 370, § 21, as amd. by L.
1902, ch. 270) prohibiting the removal of an honorably discharged soldier
or volunteer fireman from any position, by appointment or employment,
in the state or any of the cities thereof, except for incompetency or mis-
conduct after a hearing upon stated charges, and, therefore, an honorably
discharged volunteer fireman who has been removed by the board of tax
commissioners without a trial, having been first given an opportunity of
making an explanation, under the provisions of section 1543 of the charter,
is not entitled to a hearing upon stated charges, and a writ of certiorari
to review his removal will not lie. People ex rel. Ryan v. Wells. 462
CODE OF CIVIL PROCEDURE.
1. §§ 840, 348 — County Courts — Jurisdiction of, over Counterclaims
Exceeding $2,000 in Amount. While the jurisdiction of County Courts in
actions for the recovery of money only is limited by section 14 of article VI
of the Constitution and section 340 of the Code of Civil Procedure to actions
in which the complaint demands judgment for a sum not exceeding
$2,000, such limitation is based whollv on the demand of the complaint,
and. after jurisdiction of a cause of action has once been acquired, a
County Court has, under section 348 of the Code of Civil Procedure, " the
same jurisdiction, power and authority in and over the same and in the
course of the proceedings therein, which the Supreme Court possesses in
620 INDEX,
CODE OF CIVIL PROCEDURE— Continued.
a like case; and it may render any judgment, or grant either party any
relief, -which the Supreme Court might render or grant in a like case;
and so the general jurisdiction to entertain common-law actions, where the
demand for judgment in the complaint does not exceed $2,000, carries
with it the power to try and renaer any judgment upon any counter-
claim irrespective of the amount that the defendant may plead in his
answer to the cause of action stated in the complaint. Howard Iron Work*
v. Buffalo Elevating Co. 1
2. § 405 — MecJianic's Lien — Action to Foreclose Lien — When Action
Commenced Within One Tear After Filing Lien Is Dismissed for Lack of
Evidence a New Action May Be Commenced Within One Year After Final
Determination of First Action. Where a mechanic's lien was filed January
24, 1889, and an action to foreclose the lien, duly commenced February 15,
1889, was dismissed "on the merits," for failure to furnish an architect's
certificate of performance of the work, by a judgment entered August 4,
1899, and, on appeal, the Appellate Division, on March 9, 1900, modified
the judgment by striking therefrom the words "on the merits/' and
affirmed it as modified, a new action to foreclose the lien, commenced
March 15, 1900, is not barred by the provision of the Lien Law, that a
lien shall not continue for a longer period than one year after the notice
of lien has been filed, unless within that time an action is commenced to
foreclose the lien, since the statute does not in express terms prohibit an
action to foreclose a lien unless that action be commenced within one
year, but enacts that the lien shall cease unless an action be brought
thereon within one year, the first action was commenced within that time,
and, therefore, the cause of action is saved by the statute (Code Civ. Pro,
§ 405), which provides that if an action be commenced within the time
limited therefor, and be terminated in any other manner than by a voluntary
discontinuance, a dismissal of the complaint for neglect to prosecute the
action or a final judgment upon the merits, the plaintiff may commence
a new action for the same cause after the expiration of the time so limited
and within one year after such reversal or termination. Conolty v.
Hyams. 403
3. § 439 — Failure to Legally Serve Non-resident Devisee witii Process
Fatal to Judgment. A devisee under a will of real estate directed to be
sold, having an interest therein subject to the exercise of a power of
sale, is a necessary party to an action in equity by a creditor of the estate
to establish his claim and compel the sale of such real estate for the
payment of debts; and where the devisee who was a non-resident was
made a party defendant, but by reason of a non-compliance with sec-
tion 439 of the Code of Civil Procedure was never legally served with
process and did not appear, a judgment in plaintiff's favor must be
reversed. Hotty v. Gibbons, 520
4. § 756 — Practice — Continuance of Action in State Court against
Receivers Appointed by Federal Court after Their Discliarge. An action
against railroad receivers appointed by a federal court brought in the
Supreme Court of the state of New York under the Revised Statutes of
the United States, authorizing the bringing of actions without previous
leave of the court against a receiver appointed by a federal court in
respect to any act or transaction of his in carrying on tbe business
connected with the property, is not necessarily terminated as to them
by their subsequent discharge and the transfer of the property pur-
suant to a decree of foreclosure and sale made by the federal court,
and the plaintiff is not obliged to substitute the purchaser thereunder as
defendant before proceeding to judgment; under section 756 of the Code
of Civil Procedure, in case of a devolution of liability, the court may sub-
stitute the party upon whom the liability is devolved, but when it does
not, the action is properly continued against the original parties. Baer
v. McCultotgh. 97
INDEX. 621
CODE OF CIVIL PROCEDURE— Continued.
5. §968— Trial — When Question Whether Judgment for Money May Be
Recovered Is Dependent upon Decision of Equitable Questions the Issue Is Not
Triable by Jury as a Matter of Right. An action brought by the execu-
tors of a decedent demanding judgment that a contract of annuity between
decedent and a life insurance company be adjudged void and be canceled
and set aside and that the plaintiffs recover from defendant the amount
paid by decedent or the annuity with interest thereon less the amount of
annuities paid with interest thereon, is an action praying for the relief
that only a court of equity can grant, and the plaintiffs are not entitled
to a trial by jury as a matter of right, under the provisions of section 968
of the Code of Civil Procedure. Dykman v. U. & Life Ins. Co. 299
6. § 1817 — Appeal — Power of Appellate Division to Reverse or Affirm
Wholly or Partly. Where a judgment rendered in an action at law or in
equity consists of distinct parts so separate and independent in form and
nature as to be easily severed and each is in fact a distinct adjudication,
the Appellate Division, in the exercise of a sound discretion, may upon
appeal, under section 1317 of the Code of Civil Procedure affirm the
adjudication not affected by error and reverse the adjudication which is
affected by error and grant a new trial as to that portion of the issues
only, the application of the rule depending upon the form and nature of
the judgment rendered rather than upon the forum of the action. City of
Buffalo v. Delaware, L. <& W. R. R. Co. 308
7. § 2588— Appeal— When Appellate Court May Make Order Directing
Trial by Jury of Questions of Fact. Under section 2588 of the Code of
Civil Procedure an appellate court must "make an order directing the
trial by a jury of the material questions of fact arising upon the issues
between the parties," where its reversal or modification of a decree is
founded upon a question of fact, and it may do it in any other case
where, in its opinion, it would seem that the ends of justice migUt be
best promoted by such a course. Matter of Hopkins. 595
8. §§ 3251, 3372— Costs— What Costs May Be Recovered by Landowner
Successfully Defending Condemnation Proceeding. Where the compensa*
tion awarded to the owner of real property, by the commissioners in a con-
demnation proceeding instituted uncler section 8372 of the Code of Civil
Procedure, exceeds the amount offered by the corporation seeking to
condemn the property, with interest from the time the offer was made,
the landowner is entitled to recover the same amount of costs that a
defendant may recover under section 3251 of the Code of Civil Procedure
when he has prevailed in an action in the Supreme Court after a trial;
ten dollars costs for proceedings before notice of trial and fifteen dollars
after notice of trial, with thirty dollars costs for a trial of an issue of fact
and ten dollars for a trial occupying more than two days. Matter of
Brooklyn Union Elevated R. R. Co. 213
CODE OF CROON AL PROCEDURE.
1. § 395 — Evidence — Admissibility of Confession Procured by Deception
— Credibility of Witness Thereto a Question for the Jury. Confessions
made by one accused of crime may be given in evidence unless made upon
astipulation for freedom from prosecution or under the influence of fear
produced by threats. (Code Cr. Pro. § 895.) The fact, therefore, that a
confession was procured from a defendant charged with the crime of
murder by a deception practiced by an officer in charge of him, which
is not sanctioned by the Court of Appeals, does not make it incompetent.
Confessions must be corroborated by proof "that the crime charged has
been committed," and when so corroborated, the question of the credi-
bility of the witnesses thereto and the circumstances under which the con-
fessions are made are for the consideration of the jury. People v. White. 331
2. Idem — Trial — Instruction to Jury. Where a confession procured
from a defendant, who was imprisoned under a charge of murder, by an
622 INDEX.
CODE OF CRIMINAL PROCEDURE — Continued,
undersheriff pretending to be his friend and desiring to help him, and other
confessions made to follow- prisoners who were in th3 charge of the sheriff
and subject to his influence, are offered in evidence and it appears that
there is evidence to bring all of the confessions within the permission of
the statute (Code Cr. Pro. § 395), but none to bring any of them within
the prohibition thereof, except the statement of the defendant himself,
which was denied by several witnesses, and the confessions are corrobo-
rated, one in nearly every particular and the others in several substantial
particulars, it is not erroneous to submit to the jury the question of fact
whether any of the confessions fell within the prohibition of the statute
or of the rules of evidence, where they are instructed to disregard them
if they were made under the influence of fear produced by actual or
covert threats, or through promises, acts of intimidation or other unlawful
means, and unless they were voluntary, fairly obtained and not procured
by inquisitorial compulsion or other improper methods. Id.
8. §528 — Examination of Alleged Error in Charge — When Such Error
Cannot Be Reviewed Without an Exception Thereto — Effect of Section 528,
Code of Criminal Procedure, An instruction by the trial court on a trial for
murder that it is " not necessary that every circumstance should be proved
beyond a reasonable doubt," does not constitute reversible error where it
is apparent that the court did not mean that every circumstance consti-
tuting a link in the chain of circumstances necessary to establish ' ' the
fact of killing by the defendant " need not be proved beyond a reasonable
doubt, but that every incidental circumstance, such as those bearing upon
the probabilities that the main circumstances were true, or that every fact
essential to convict, such as "the death of the person alleged to have
been killed," need not be proved beyond a reasonable doubt; moreover,
such instruction cannot be reviewed under the statute (Code Crim. Pro.
§ 528) in the absence of a specific exception thereto, when the court is
satisfied that the verdict is right and based upon evidence that is clear and
convincing. People v. Tobin. 278
4. § 542 — Crimes — Uxoricide — Evidence of Reputation for Unchastity of
Defendant's Alleged Paramour Incompetent upon tJie Question of Motive.
Upon the trial of an indictment for the murder of a husband or wife
specific acts, declarations, conduct and occurrences tending to show
improper relations with a person of the opposite sex are competent evi-
dence upon the question oi motive; but evidence as to the reputation for
unchastity of the alleged paramour is incompetent; its reception consti-
tutes reversible error and is not an error that can be overlookeci as technical
or unsubstantial under section 542 of the Code of Criminal Procedure.
People v. Montgomery. 219
5. §658 — Wfien Court Is Justified in Refusing to Appoint Commis-
sion under the Statute to Examine Defendant and Report as to His Sanity.
Where a trial court, at the request of counsel for a defendant charged
with the crime of murder, at the time the indictment was moved for
trial, appointed two expert physicians to examine the defendant and
report as to his sanity, and adjourned the trial until such report could
be made, and the physicians, after making an examination, reported
that in their judgment the defendant was sane, in which opinion a third
physician, who at one time had charge of defendant, concurred, the
court is justified, in the exercise of sound discretion, in denying a
motion made in behalf of defendant, based upon the affidavits of his
attorneys, for a commission, pursuant to section 658 of the Code of
Criminal Procedure, to examine the defendant and report to the court as to
his sanity at the time of the examination, where no evidence is presented
to controvert the report of the medical experts, who examined the defendant,
and to show that he was insane, except the affldav its of his counsel, which
contained few facts and consisted mainly of the expression of their own opin-
ions, unsupported by the affidavit of any physician. People v. Tobin. 218
1XDEX. 623
COLONIAL LAWS.
1703, Ch. 131, 1772, Ch. 1536 — Power of Town Officers of Town of Hyde
Park Not Restricted or Affected by Section 77 of the County Law, Relating
to the Alteration of State Roads. The power of the town hoard and high-
way commissioners of the town of Hyde Park to authorize an alteration
and improvement in the New York and Albany post road is not restricted
or made dependent upon the consent of the board of supervisors of
Dutchess county by the provisions of section 77 of the County Law (L.
1892, ch. 686), providing that the board of supervisors of any county may
authorize the commissioners of highways of any town in their county to
alter or 'discontinue any road or highway therein, which shall have been
laid out by the state, since it is apparent, from an examination of the
Colonial Laws (Col. Laws, 1703, ch. 131 ; 1772, ch. 1536), and the statutes
of the state (L. 1779, ch. 31; L. 1797, ch. 43; L. 1813, ch. 33), relating to
the laying out, construction and maintenance of the New York and
Albany post road and other public highways established prior to 1813,
that under the colonial laws as early as 1772, especially in Dutchess
county, where the alteration in question was made, commissioners of
highways were empowered to alter highways that were deemed incon-
venient, and that this power was continued by the state legislature in
1779 and by general laws in 1797 and 1813, and that the same power has
been continued until the present day; it follows, therefore, that at the
time of the passage of the County Law and of chapter 817 of the Laws
of 1882, and even of chapter 83 of the Laws of 1817, the substance of
which statutes is contained in section 77 of the County Law, the commis-
sioners of highways of towns had been given jurisdiction over the existing
colonial highways, with the power to make such needed alterations
therein as should be deemed necessary, and that power has not been taken
from them by the County Law. People ex rel. JHnsmore v. Vandewater.
500
COMPROMISE.
Of action for damages against city of New York arising from negli-
gence of contractor — bond to indemnify city — impairment of indem-
nitor's rights.
See Principal and Surety.
CONDEMNATION PROCEEDINGS.
What costs may be recovered by landowner successfully defending.
See Costs.
Condemnation of rights of owners of waters of inland pond and rights
of owners of land surrounding the pond and under waters of same — when
owner of bed of pond entitled to substantial damages therefor.
See Riparian Rights, 3.
Effect of assessment made while proceeding for condemnation of prop-
erty is pending.
See Tax, 1.
Appraisal of property of water works company, made by commissioners
in condemnation proceedings, illegal and erroneous when based upon
invalid contract of purchase.
See Water Works, 8.
CONFESSION.
Of crime procured by deception — admissibility of , in evidence — how
competency of, is to be determined.
See Crimes, 15, 16.
i CONSIDERATION.
For grant of easement obtained by fraud — when need not be returned
[ as preliminary to action of ejectment.
See Ejectment, 1, 2.
624 INDEX.
CONSPIRACY.
To wreck corporation — action for resulting damages must be brought
by corporation, not by individual stockholder — measure of damages.
See Corporations, 1.
CONSTITUTIONAL LAW.
1 . Prohibition Against Use of Free Railroad Passes by Public Officers Applies)
to Palace and Sleeping Car Passes — Const. Art. XIII, § 5. A public officer,
who accepts the privilege of riding in a palace or sleeping car accorded to
him by a free pass, accepts a free pass and free transportation within the
meaning of section 5 of article XIII of the Constitiitionprohibiting the
use by a public officer of free transportation. People v. WadJiams. 9
2. Witness in Any Criminal Case Not Compelled to Give Any Evidence
Against Himself — When Determination Whether or Not Answer Will
Incriminate Him Rests with Witness — Con t. Art. 1, Sec. 6. Under section
six of article one of the State Constitution, providing that no person
''shall be compelled in any criminal case to be a witness against him-
self," he is not obliged to answer questions in any criminal case, either
against himself or another party, when he states that his answers might
tend to incriminate him; he is protected from being compelled to disclose
the circumstances of his offense or the sources from which, or the means
by which, evidence of its commission, or his connection with it, may be
obtained or made effectual for his conviction, without using his answers
as direct admissions against him; and except where the court can see
that his refusal to answer is clearly a fraudulent device to protect a
third party, and that the witness is in no possible danger of disclosing
facts that would lead to his own indictment and conviction, he is his own
judge as to whether or not he will answer. People ex rel. Lewisohn ▼.
QBrien. 253
3. Privilege of Witness Provided for by Section 342 of the Penal Code Not
Coextensive with That Afforded by Constitutional Provision. Section 342 of
the Penal Code, providing that " No person shall be excused from giving
testimony upon any investigation or proceeding for a violation of this
chapter upon the ground that such testimony would tend to convict him
of a crime; but such testimony cannot be received against him upon any
criminal investigation or proceeding," is not coextensive with the consti-
tutional provision and does not afford the witness the protection con tern -
Slated thereby, in that it does not prevent the use of evidence against
im which may be obtained through his testimony, but simply excludes
such testimony. Id.
4. Same. A witness produced by the prosecution before a magistrate
on an information charging the defendant with keeping a gambling house
may properly refuse to answer questions as to whether he had ever been
in the place in question, upon the ground that his answers might tend to
incriminate him, since the statute does not afford him the full protection
accorded by the constitutional provision. Id.
Personal rights — when admission in evidence of private papers not vio-
lative of constitutional guaranty against compelling a prisoner to be a
witness against himself — constitutionality of sections 344a and 844b of
Penal Code in relation to policy gambling — constitutionality of Indeter-
minate Sentence Law.
See Crocks, 18-22.
Validity of provisions of charter of city prohibiting maintenance of
actions to set aside or annul assessments for local improvements unless
commenced within prescribed time and in compliance with prescribed
conditions.
See Limitation of Actions.
INDEX. 625
CONSTITUTIONAL LAW— Continued.
Constitutional guaranty of freedom of worship not violated by statu-
tory requirement that medical attendance be furnished to minor child.
See Parent and Child, 5.
Section 220 of Tax Law, imposing transfer tax upon the exercise of
a power of appointment, constitutional — construction of statute.
See Tax, 4, 5.
Invalidity of resolution of board of supervisors attempting to extend
term of town officers.
See Towns.
CONTBACT.
New York City — Street Improvement — When City Not Liable for Dam-
age* Caused by Mistakes of City Surveyor in Fixing Grades. Under a
street improvement contract executed by the commissioner of public
works of the city of New York pursuant to an ordinance directing the
regulating and grading of an avenue, which contract provided that
"a city surveyor will be employed by the parties of the first part to see
that the work is completed in conformity to the profile and to ascertain
and certify the quantity of work done. Said surveyor, at the request of
the contractor, will be directed to designate and fix grades for his guid-
ance during the progress of the work without charge, provided that the
said parties of the first part shall not be liable for any delay or for any
errors of said surveyor in giving such grades and said surveyor shall be
considered as the agent of the contractor so far as giving such grades is
concerned and not the agent of the city of New York," to which contract
a profile was attached — the contractor is not entitled to recover for losses
suffered in the grading of the avenue by reason of the mistakes of the city
surveyor in grades given by him although the contractor did not request
that the grades be furnished him, and upon discovering the mistakes noti-
fied the superintendent of street improvement of them and proceeded only
after his positive direction to con form the avenue to the grades given, for
the reason that the duty of the contractor was to follow no grade except
such as was in accordance with the profile, and the direction of such
officer was a material modification of this requirement which he had no
power to make in the absence of an express authorization by the proper
authorities; and, therefore, the contractor proceeded at his peril to obey
such direction, and in not relying upon the profile alone. Becker v. City
of New York. 441
Of title insurance — reformation of policy.
See Insurance, 1-3.
Of life insurance — restriction of power of agents to waive conditions.
See Insurance, 4-6.
Provisions in specifications for construction of new East River Bridge
limiting competition neither illegal nor fraudulent — insertion of invalid
provisions of Labor Law does not render contract void.
See New York (City ok), 6, 7.
For public work in city of New York — bond to indemnify city from
claims for damages arising from negligence of contractor — impairment
of indemnitor's rights.
See Principal and Surety.
By one of several joint debtors under judgment in tort to pay part
thereof in consideration of his release therefrom — when such joint
debtor will not be relieved from contract because of similar contract
made with other joint debtors.
See Subrogation, 1-3.
40
626 INDEX.
CONTRACT — Continued.
Of annuity — action to set aside.
See Tbial, 3.
By village to purchase property of water works company — when
invalid.
See Water Works, 7, 8.
CONVERSION.
When discharge in bankruptcy not a defense to action for.
See Bankruptcy.
CORPORATIONS.
Action for Damages Resulting from Conspiracy to Wreck Corporation Must
Be Brought by Corporation, Not by an Individual Stockholder — Protection of
Interests of Minority Stockftolders — Measure of Damages. The damages,
resulting from an alleged conspiracy entered into by the majority stock-
holders of a corporation to wreck it, by refusing, through officers under
their control, to accept business, so that it would be unable to pay the inter-
est upon its funded debt, and a foreclosure would result by which creditors
and the minority stockholders would be deprived of their interest in the
property, belong to the corporation, not to the individual stockholders, and
the latter, as such, cannot maintain an action for their recovery. Such an
action must be brought by the corporation or its receiver or by any stock-
holder after proper demand, in behalf of the corporation and for its-benefit,
in order that the interest of creditors may be protected and that they may
be paid out of any recovery. Assuming that the directors of the corpora-
tion in such a case would be controlled by the defendants and would
work against the interests of the minority stockholders, the Supreme Court
has ample power to protect such interests, and the remedy would be
adequate, since the measure of damages in such an action would be the
full value of the property and franchises of the corporation as it existed
prior to the overt acts producing insolvency, less that which the property
actually brought upon the foreclosure sale. Nile* v. N. Y. C. db H. R. R.
R. Co. 119
Foreign insurance corporation — franchise tax upon.
See Tax, 6.
Water works companies — right of, to lay water mains through city.
See Water Works, 1-6.
COSTS.
Wliat Costs May Be Recovered by Landowner Successfully Defending Con-
demnation Proceeding Instituted under Section 3872 of Code of Civil Pro-
cedure. Where the compensation awarded to the owner of real property,
by the commissioners in a condemnation proceeding instituted under sec-
tion 3372 of the Code of Civil Procedure, exceeds the amount offered by
the corporation seeking to condemn the property, with interest from the
time the offer was made, the landowner is entitled to recover the same
amount of costs that a defendant may recover under section 3251 of the
Code of Civil Procedure when he has prevailed in an action in the
Supreme Court after a trial; ten dollars costs for proceedings before
notice of trial and fifteen dollars after notice of trial, with thirty dollars
costs for a trial of an issue of fact and ten dollars for a trial occupying
more than two days. Matter of Brooklyn Union El. R. R. Co. 218
COUNSEL.
Briefs of, on appeal should contain a fair statement of facts.
See Appeal, 5.
INDEX. G27
COUNTERCLAIMS.
Jurisdiction of County Courts over counterclaims exceeding $2,000
in amount. *
See Jurisdiction.
COUNTIES.
When power of town officers to alter and improve state highway is
not affected by section 77 of County Law.
See Highways, 2.
Invalidity of resolution of board of supervisors attempting to extend
term of town officers.
See Towns.
COUNTY COURTS.
Jurisdiction of, over counterclaims exceeding $2,000 in amount
See Jurisdiction.
COURT OF APPEALS.
Briefs of counsel on appeal to, should contain a fair statement of facts.
See Appeal, 5.
When can take judicial notice of nothing but facts authenticated by
public records.
See Trial, 2.
COURTS.
Jurisdiction of County Courts over counterclaims exceeding $2,000 in
amount.
See Jurisdiction.
COVENANTS.
Conveyance by the city of New York of pier not a conveyance in fee
of land covered by the pier — effect of covenants contained in prior deeds
of adjoining land under water to same grantee.
See Title, 5.
CREDITOR'S SUIT.
To compel executor to sell real estate under power of sale for payment
of debts.
See Decedent's Estate, 1-5.
CRIMES.
1. Murder — Sufficiency of Evidence. The evidence upon the trial of
au indictment for murder reviewed and held sufficient to warrant a
verdict convicting the defendant of the crime of murder in the first
degree. People v. Qaimari. 84
2. Evidence — Competency of Threats Made by Defendant. Threats of
the defendant to kill the deceased, made a short time before the homicide,
are competent evidence especially when the homicide is claimed to have
been excusable or justifiable, but should be received with caution, since
many an idle threat is made, and words spoken under excitement are
liable to be misunderstood. Id.
3. Incompetency of Evidence of Specific Acts of Violence of Deceased
Toward Third Person. Where the accused claims that he acted in self-
defense, it is competent to show the general reputation of the deceased
for violence, but evidence of specific acts toward a third person,
especially where it does not appear that defendant had heard of them, is
inadmissible. Id.
628 INDEX.
CHIMES — Continued.
4. Charge. Error cannot be predicated upon a charge which is too
lenient toward the defendant and is in accordance with the request of his
counsel. Id.
5. Uxoricide — Evidence of Reputation for Unchnstity of Defendants
Alleged Paramour Incompetent upon the Question of Motive — Code Cr, Pro.
% 542. Upon the trial of an indictment for the murder of a husband or
wife specific acts, declarations, conduct and occurrences tending to show
improper relations with a person of the opposite sex are competent evi-
dence upon the question of motive; but evidence as to the reputation for
unchastity of the alleged paramour is incompetent; its reception constitutes
reversible error and is not an error that can be overlooked as technical or
unsubstantial under section 542 of the Code of Criminal Procedure.
People v. Montgomery. 219
6. Duty of Trial Court as to a Theory of the Prosecution Wholly Unsup-
ported by Evidence. Where in order to sustain a theory of the prosecution
that the defendant had quarrelled with his wife and had assaulted her
with a wooden stick, fracturing her skull, and to escape exposure had shot
her, a stick found in the room where her body lay is introduced in evi-
dence, but there is an utter failure of proof to support such theory, the court
should have directed the attention of the jury to that fact and should have
restrained the counsel for the prosecution in his summary from comment-
ing upon a theory that had collapsed for want of evidence; and its refusal
upon the request of defendant's counsel to charge that there was no
evidence that the stick had been used by the defendant in the commis-
sion of an assault upon the deceased pnor to the shooting, followed by
arguments of the counsel for the prosecution in support of such theory
and by a charge tending to dignify the theoretical assault into a reality,
constitute errors for which a judgment of conviction must be reversed. Id.
7. Murder — Sufficiency of Evidence — Insanity. The evidence upon the
trial of an indictment for murder reviewed and held sufficient to sustain
a verdict convicting the defendant of the crime of murder in the first
degree, including, as an essential part of such verdict, the finding that the
defendant was sane when he committed the act. People v. Tobin. 278
8. When Court Is Justified in Refusing to Appoint Commission under th*
Statute {Code Ccim. Pro. § 658) to Examine Defendant and Report as to His
Sanity. Where a trial court, at the request of counsel for a defendant
charged with the crime of murder, at the time the indictment was moved
for trial, appointed two expert physicians to examine the defendant and
report as to his sanity, and adjourned the trial until such report could be
made, and the physicians, after making an examination, reported that in
their judgment the defendant was sane, in which opinion a third physi-
cian, who at one time had charge of defendant, concurred, the court is jus-
tified, in the exercise of sound discretion, in denying a motion made in
behalf of defendant, based upon the affidavits of hfs attorneys, for a com-
mission, pursuant to section 658 of the Code of Criminal Procedure, to
examine the defendant and report to tne court as to his sanity at the time
of the examination, where no evidence is presented to controvert the report
of the medical experts, who examined the defendant, and to show that he
was insane, except the affidavits of his counsel, which contained few
facts and consisted mainly of the expression of their own opinions, unsup-
ported by the affidavit of* any physician. Id.
9. Instruction as to Presumption of Sanity of Defendant. An instruction
to the jury that "if evidence is given tending to establish insanity, then
the general question is presented * * * whether the crime, if com-
mitted, was committed by a person responsible for his acts; and upon this
question the presumption of sanity and the evidence are all to be con-
sidered, and the prosecutor holds the affirmative, and if a reasonable
INDEX. 629
CRIMES — Continued.
doubt exists as to whether the prisoner is sane or not, he is entitled to
the benefit of that doubt," must be considered as embodying the correct
rule upon the subject. Id.
10. Trial Court Not Bound to CJutrge Bequest of Counsel Where Substan -
(ially the Same Proposition Has Already Been Charged. Where the court
has carefully defined reasonable doubt and has charged in various ways
that the jury must be convinced of the defendant's guilt beyond a rea-
sonable doubt, and that if there is a reasonable doubt as to his sanity
he is entitled to the benefit of that doubt, the refusal to charge substan-
tially the same propositions in the language of defendant's counsel does
not constitute reversible error. Id.
11: Examination of Alleged Error in Charge — When Such Error Cannot
Be Reviewed Without an Exception Thereto — Effect of Section 528, Code of
Criminal Procedure. An instruction by the trial court that it is "not
necessary tl\at every circumstance should be proved beyond a reasonable
doubt," does not constitute reversible error where it is apparent that the
court did not mean that every circumstance constituting a link in the
chain of circumstances necessary to establish "the fact of killing by the
defendant " need not be proved beyond a reasonable doubt, but that every
incidental circumstance, such as those bearing upon the probabilities that
the main circumstances were true, or that every fact essential to convict,
such as "the death of the person alleged to have been killed," need not
be proved beyond a reasonable doubt; moreover, such instruction can-
not be reviewed under the statute (Code Crim. Pro. § 528) in the absence
of a specific exception thereto, when the court is satisfied that the ver-
dict is right and based upon evidence that is clear and convincing. Id.
12. Murder — Sufficiency of Eotdence. The evidence upon the trial of an
indictment for murder reviewed and held sufficient to sustain a verdict
convicting the defendant of the crime of murder in the first degree.
People v. Ennis. 289
13. When Judgment Convicting Defendant of Murder Will Not Be
JUversed in the Absence of Exceptions. A judgment convicting a defend-
ant of murder will not be reversed and a new trial ordered, in the
absence of any exception, where the court is satisfied, upon a review of
the record, that the evidence well supported the verdict of the jury; that
it abundantly established the guilt and the responsibility of the defendant,
and that his substantial rights have not been prejudicially affected. Id.
14. Murder — Sufficimcy of Ecidence. The evidence upon the trial of an
indictment for murder reviewed and held sufficient to sustain a verdict
convicting the defendant of the crime of murder in the first degree. People
v. White. 831
15. Evidence — Admissibility of Confession Procured by Deception — Code
Or. Pro. §395 — Credibility of Witness Tliereto a Question for the Jury.
Confessions made by one accused of crime may be given in evidence
unless made upon a stipulation for freedom from prosecution or under the
influence of fear produced by threats. (Code Cr. Pro. § 395.) The fact,
therefore, that a confession was procured from a defendant charged with
the crime of murder by a deception practiced by an officer in charge of
him, which is not sanctioned by the Court of Appeals, does not make it
incompetent. Confessions must be corroborated by proof " that the crime
charged has been committed," and when so corroborated, the question of
the credibility of the witnesses thereto and the circumstances under which
the confessions are made are for the consideration of the jury. Id.
16. How Competency of Confession Is to Be Determined. The competency
of a confession is to be determined by the trial court upon the facts in
evidence at the time it is offered, and 'in all cases inquiry should be made
630 INDEX.
CRIMES — Continued.
whether the defendant spoke through fear or in the expectation of immu-
nity, and when he is under arrest it should also be asked whether he spoke
to the magistrate, or to the officer in charge, or in their presence, because
he felt that he was compelled to for any reason, and it is proper to allow
a preliminary examination by the defendant's counsel to test the compe-
tency of a confession before it is received. After it is received, if a ques-
tion of fact arises as to its voluntary character, the jury should be
instructed to wholly disregard it. unless they find that it was voluntarily
made, without threat or menace by acts, words or situation, and without
compulsion, real or apprehended, and without the promise, express or
implied, that the defendant should not be prosecuted or that he should be
punished less severely. Id.
17. Trial — Instruction to Jury. Where a confession procured from a
defendant, who was imprisoned under a charge of murder, by an under-
sheriff pretending to be his friend and desiring to help him, and other con-
fessions made to fellow-prisoners who were in the charge of the sheriff and
subject to his influence, are offered in evidence and it appears that there is
evidence to bring all of the confessions within the permission of the stat-
ute (Code Cr. Pro. § 895). but none to bring any of them within the pro-
hibition thereof, except the statement of the defendant himself, which was
denied by several witnesses, and the confessions are corroborated, one in
nearly every particular and the others in several substantial particulars, it
Is not erroneous to submit to the jury the question of fact whether any of
the confessions fell within the prohibition of the statute or of the rules of
evidence, where they are instructed to disregard them if they were made
under the influence of fear produced by actual or covert threats, or
through promises, acts of intimidation or other unlawful means, and
unless they were voluntary, fairly obtained and not procured by inquisi-
torial compulsion or other improper methods. Id.
18. Constitutional Law — Personal Rights. Articles 4 and 5 of the
amendments to the Constitution of the United States relating to personal
rights do not apply to actions in the courts of the state of New York.
People v. Adams. 351
19. Evidence — Admissibility on Criminal Trial of Private Papers
Alleged to Have Been Unlawfully Obtained. The court when engaged in
the trial of a criminal case will not take notice of the manner in which
witnesses have possessed themselves of private papers or other articles
of personal property, which are material and are properly offered in
evidence. Id.
20. Same — When Admission of Private Papers Not Violative of Con-
stitutional Guaranty Against Compelling Prisoner to Be a Witness
Against Himself — Const. Art. 1, § 6. The admission in evidence upon
the trial of an indictment under section 844a of the Penal Code,
relating to policy playing, of private papers and property belonging
to the defendant, alleged to have been unlawfully seized by police officers
and introduced by the prosecution for the purpose of establishing his
handwriting on certain policy slips, and to show that the office in which
they were found was occupied by him, does not compel him to become a
witness against himself in violation of section 6 of article 1 of the Consti-
tution of the state of New York. Id.
21. Policy Gambling — Constitutionality of Sections 344a and 344£ of
Penal Code — What Public Officers May Lawfully Be in Possession of
Apparatus Usrd in Game of Policy. Section 844a of the Penal Code,
creating the crime of "policy" gambling and making it unlawful for
any person to have in his possession the apparatus therefor, is not an
unauthorized interference with the ownership of private property and
is constitutional. Section 844b, making the possession by any person
IXDEX. 631
CBIMES — Continued.
other than a public officer of such apparatus "presumptive evidence
of possession thereof knowingly and in violation of" the preceding sec-
tion, creates no offense, but simply prescribes a rule of evidence within
the power of the Legislature, and is also constitutional. Neither section
depends upon the other, each being complete in itself. The public officers
intended to be excepted by the Legislature arc those who, in the dis-
charge of their official duties, are necessarily at times the custodians of
the apparatus, and this provision, therefore, is not objectionable as class
legislation. Id.
22. Constitutionality of Indeterminate Sentence Law — Penal Code,
% 687a. Section 687a of the Penal Code, fixing a maximum and
minimum sentence for prisoners, must be considered in connection
with the law relating to prisons, permitting the parole of such prisoners,
is a merciful exercise of legislative power and is constitutional. Id.
23. Evidence — Non-existence of Search Warrant Immaterial. The
refusal of the trial court to allow evidence as to the non-existence of a
search warrant at the time of the removal of apparatus from the place
claimed to have been occupied by the defendant as an office is not error,
such apparatus being competent evidence and the manner of obtaining
possession of it being immaterial. Id.
24. The State Charities Law — Jurisdiction of New York City Magistrate
to Sentence Women to State Reformatory at Bedford under Section 146
Thereof — Conviction Must Be for Offenses Enumerated TJierein. Under
section 146 of the State Charities Law (L. 1896, ch. 546, as amd. by L. 1899,
ch. 632), providing that " A female, between the ages of fifteen and thirty
years, convicted by any magistrate of petit larceny, habitual drunken-
ness, of being a common prostitute, of frequenting* disorderly houses or
houses of prostitution, or of a misdemeanor, and who is not insane, nor
mentally or physically incapable of being substantially benefited by the
discipline of cither of such institutions, may be sentenced and committed
to * * * the New York State Reformatory for Women at Bedford,"
a magistrate of the city of New York has no jurisdiction to sentence a
woman to such reformatory unless she is convicted of one or more of the
offenses enumerated therein; and a conviction thereunder is improper
where it is impossible to determine, from the records and papers relating
to the conviction and sentence returned upon writs of habeas corpus and
certiorari allowed in her behalf, whether she was convicted of being a
prostitute, either "public" or "common," assuming these terms to be
practically synonymous, or on the charge of "disorderly conduct;" but,
assuming that it is reasonably certain that the magistrate intended to
convict the relator of "disorderly conduct," then the conviction is not a
valid conviction for a misdemeanor, aud, therefore, within the purview
of the State Charities Law, unless the offense complained of constitutes a
misdemeanor as defined by law, and where the record fails to show that
the disorderly conduct complained of comes within the meaning of sec-
tion 1458 of the Consolidation Act, which seems to have been incorpo-
rated into the Greater New York charter, or that of section 675 of the
Penal Code, relating to the offense of disorderly conduct, so that it con-
stitutes the offense of "disorderly conduct/' as therein defined, and,
therefore, is a misdemeanor, the relator is properly discharged from cus-
tody. People ex rel. Clark v. Keeper, etc. 465
Witness in any criminal case not compelled to give any evidence against
himself.
See Constitutional Law, 2-4.
Unlawful omission to provide medical attendance for a minor child.
See Parent and Child, 1-5.
632 INDEX.
DAMAGES.
Measure of, in action for damages resulting from conspiracy to wreck
corporation.
See Corporations, 1.
Measure of, where a portion of a tract of land is taken for use of
railroad.
See Eminent Domain.
For loss of property — when evidence of value admissible.
See Evidence 2, 3.
Caused by change of grade in street — proceedings to recover.
See Streets, 1, 2.
DEBTOR AND CREDITOR.
When creditor not barred from taking under assignment by commence-
ment of action to set It aside.
See Assignment, 2.
When payment to foreign administrator after appointment of adminis-
trator in this state discharges debt.
See Executors and Administrators.
Moneys advanced subject to election of executors to treat advancement
as a loan — interest runs from time of election.
See Interest.
Rights of surety which has paid judgment recovered in tort against
several joint tort feasors and has been subrogated to rights of the judg-
ment creditor thereunder — contract by one of several joint debtors under
judgment in tort to pay part thereof in consideration of his release there-
from — when such joint debtor will not be relieved from contract because
of similar contract made with other joint debtors — when judgment
debtor not entitled to injunction restraining surety from enforcing his
agreement to pay part of the joint judgment.
See Subrogation, 1-3.
DECEDENT'S ESTATE.
1. Equity — Creditor' 8 Action to Compel Executor to Sell Beat Estate
under Power of Sale for Payment of Debts. Where the personal estate
of a decedent is insufficient to satisfy his debts a creditor may main-
tain an action in equity to establish his claim nnd to compel an execu-
tor having a testamentary power to sell designated real estate "for the
purpose of paying debts," to sell the same and apply the proceeds to the
extinguishment of the debt. Holly v. Gibbons. 520
2. Acknowledgment by Executor Prevents Running of Statute of Lim-
itations. It is not only the right, but the duty of the executor to dis-
charge the debt, and his acknowledgment thereof, by making payments
thereon from time to time, prevents the running of the Statute of Limita-
tions, the principle of the rule that prevents an executor from reviving
a debt against the estate of his testator which is barred by the statute
having no application to a case where he performs his legal duty in keep
ing it in force. ldT
•
3. Former Adjudication Dismissing Proceeding for an Accounting
Not a Bar. A former adjudication of the Surrogate's Court, the only
effect of which was to dismiss the creditor's petition for an account-
ing, containing the statement that the proceeding was " barred by the
Statute of Limitations," does not constitute a final adjudication upon
the validity of his claim and is not a bar to the maintenance of the
action. Id
INDEX. 633
DECEDENT'S ESTATE — Continued.
4. Failure to Legally Serve Non-resident Deviate with Process Fatal to
Judgment. A devisee under the will, of the real estate directed to be
sold, having an interest therein subject to the exercise of the power of
sale, is a necessary party to such an action; and where the devisee who
was a non-resident was made a party defendant, but by reason of a non-
compliance with section 489 of the Code of Civil Procedure was never
legally served with process and did not appear, a judgment in plaintiff's
favor must be reversed. Id.
5. Erroneous Direction of Sale by Referee. A direction in the judg-
ment that the real estate be sold through a referee is improper in the
absence of an allegation or finding that the executor was unfit or without
capacity to execute the power of sale. Id.
When payment to foreign administrator, after appointment of adminis-
trator in this state, discharges debt.
See Executors and Administrators.
Moneys advanced subject to election of executors to treat advancement
as a loan — interest runs from time of election.
See Interest.
Section 220 of Tux Law, imposing transfer tax upon exercise of power
of appointment, constitutional.
See Tax, 4, 5.
When void intermediate trust, created by codicil, may be expunged
without changing testator's plan for disposition of his property, the will
must be sustained.
See Will, 1.
Construction of clause in will, appointing trustees residuary legatees —
residuary estate resulting from invalid trust passes to such residuary
legatees.
See Will. 2.
DEED.
Admissibility of tax deed in evidence.
See Evidence, 1.
Of land bounded by and surrounding inland pond, when does not con-
vey the land under waters of the pond — when conveys easement, or right,
to overflow such land with waters collected and stored by dam, leaving
title and benefits thereof in grantor — effect of agreement by grantor to
buy back easement if not used by grantee.
See Riparian Rights, 1-3.
When state tax deed void for failure of comptroller to give statement
of unpaid taxes on land when requested by owner.
See Tax, 2, 3.
Conveyance by the city of New York of pier not a conveyance in fee of
land covered by the pier — effect of covenants contained in prior deeds of
adjoining land under water to same grantee.
See Title, 5.
DEFENSE.
Discharge in bankruptcy not a defense to action for embezzlement and
misappropriation of funds.
See Bankruptcy.
Payment to de facto clerk is a defense to action for salary by dejure clerk.
See New York (City op), 5.
634 INDEX.
DEFINITIONS.
Meaning of medical attendance.
See Parent and Child, 4.
EASEMENTS.
When deed of land surrounding* pond conveys easement or right to
overflow such land with waters collected and stored by dam, leaving title
and benefits thereof in grantor — effect of agreement by grantor to buy
back easement if not used by grantee.
See Riparian Rights, 2.
EJECTMENT.
1. Grant Obtained by Fraud— WJien Plaintiff May Attack Its Validity,
Although Negligent in Failitig to Bead It. The negligence of the
plaintiff in an action of ejectment against a telephone company to
recover lands occupied by its poles, in failing to read an instrument
executed by him u'.der seal, granting to the defendant the right to con-
struct and maintain its lines over and along his property, does not
preclude him from attacking the validity of the paper where it appears
that his signature thereto was obtained by fraud, in that he relied in
signing it upon the statement of defendant's agent that the paper was
a receipt for a dollar, which he wished to pay him for trimming one of his
trees, and the direction of a nonsuit upon that ground is reversible error.
Wilcox v. Am. Tel. & T. Co. 115
2. When Retort to Equitable Action Unnecessary — Consideration
Need Not Be Beturned. Under such circumstances the action is prop -
erly brought; the plaintiff is not obliged to appeal to a court of equity
for relief against the grant, but when it is set up to defeat his claim he
may avoid its effect by proof of the fraud by which it was obtained;
nor is he obliged to return the dollar paid to him on its execution; the
rescission of a contract induced by fraud is not attempted; the fraud
charged relates, not to the contract, but to the instrument purporting to
represent it. Id,
ELECTION.
Of remedies.
See Assignment, 1, 2.
TBTWTng^^T.'p'Mnyip.
Discharge in bankruptcy not a defense to action for.
See Bankruptcy.
EMINENT DOMAIN.
Railroads — Measure of Damaaes Wltere a Portion of a Tract of Land Is
Taken. Where land is acquired by a railroad company without the con-
sent of the owner, he is entitled to recover the market value of the prem-
ises actually taken and also any damages resulting to the residue, includ-
ing those which will be sustained by reason of the use to which the
portion taken is to be put by the company. South Buffalo By. Go. v.
Kirkover. 801
What costs may be recovered by landowner successfully defending con-
demnation proceedings.
See Costs.
Condemnation of rights of owners of waters of inland pond and rights
of owners of land surrounding the pond and under waters of the same —
when owner of bed of pond entitled to substantial damages therefor.
See Riparian Rights, 3.
Effect of assessment made while proceeding for condemnation of prop-
erty is pending.
See Tax, 1.
INDEX. 635
EMINENT DOMAIN— Continued.
Appraisal of property of water works company, made by commission-
ers in condemnation proceedings, illegal and erroneous when based upon
invalid contract of purchase.
See Water Works, 8.
EQUITY.
Creditor's action to compel executor to sell real estate under power of
sale for payment of debts.
See Decedent's Estate, 1-5.
EVIDENCE.
1. Competency of Tax Deed. Under section 182 of the Tax Law (L.
1896, ch. 908) a tax deed executed by a county treasurer, which has for
two vears been recorded in the office of the clerk of the couu'y in
which the lands conveyed thereby are located, Is admissible in evidence
without proof of the regularity of the proceedings upon which it is
based. Boer v. McCullough. 97
2. Action to Recover Alleged Agreed Value of Lost Property — When
Evidence of Expert Admissible to Shaw That Such Value Was Excessive.
In an action to recover damages for the loss of property, consisting of a
bicycle and models of a patented improvement thereto, received by
defendant for examination at his risk and at an alleged agreed valuation,
the testimony of an expert as to what it would cost to reproduce by hand
a model, fashioned after the patents of the lost models, is admissible,
since the question whether the sum demanded and claimed to have been
agreed upon as the value of the lost property is to be regarded as liqui-
dated damages, or merely as a penalty, is a question of intent to be
deduced from the circumstances, and if the sum demanded is an unreason-
able price for the property, evidence tending to show that fact is material
upon the question of damages. Hicks v. Monarch Cycle Mfg. Co. Ill
3. Erroneous Ruling Excluding Such Evidence. A ruling of the trial
court, excluding such evidence, cannot be sustained upon the ground
that it related only to the models and not to all of the articles in
question and was, therefore, improper and immaterial; the defendant had
the right to give the value of the different articles separately and, in
that way, establish their total value. Id.
4. Competency of Facts Showing Hostility of Witness. Testimony of a
party as to the hostility of witnesses called to impeach him is competent
for the purpose of affecting their credibility. Brink v. Stratum. 160
5. Religious Belief of Witness. A witness cannot be interrogated as to
his belief in the existence of a Supreme Being, who would punish false
swearing, for the purpose of affecting his credibility. Id.
Objection to.
See Appeal, 2.
Witness in any criminal case not compelled to give any evidence against
himself — when determination whether answer will incriminate him rests
with witness.
See Constitutional Law, 2-4.
Sufficiency of, on trial for murder — competency of threats made by
defendant — incompetency of evidence of specific acts of violence of
deceased toward third person.
See Crimes, 1-3.
Of reputation for unchastity of defendant's alleged paramour incompe-
tent upon the question of motive on trial for murder of wife.
See Crimes, 5.
636 INDEX.
EVIDENCE — Continued.
Sufficiency of, on trial for murder.
See Crimes, 7, 12, 14 •
Admissibility of confession procured by deception — how competency
of confession is to be determined.
See Crimes, 15-16.
Admissibility on criminal trial of private papers alleged to have been
unlawfully obtained — when evidence of nonexistence of search warrant
immaterial.
See Crimes, 10, 20, 28.
Testimony of experts not competent to support conclusion that a policy
of title insurance should have been different in form.
See Insurance, 8.
Accounting — testimony as to explanation to plaintiff of mistakes in
inventory, when inadmissible.
See Trial, 1.
EXECUTORS AND ADMINISTRATORS.
When Payment to Foreign Administrator Afte)r Appointment of Admin-
istrator in this State Discharges Debt. The payment by a savings bank in
the city of New York of a deposit, made by a decedent who was a resi-
dent of another state, to an administrator appointed therein, is good and
discharges the indebtedness, although several months prior thereto an
administrator had been appointed in this state, when the payment is made
in good faith and without actual notice of such appointment and it does
not appear that the decedent had any creditors in this state; and the fact
that the appointment was a matter of record in the surrogate's office is
not sufficient to charge the bank with constructive notice thereof. Mans
v. German Savings Bank. 877
Creditor's action to compel executor to sell real estate under power of
sale for payment of debts.
See Decedent's Estate, 1-5.
EXPERT&
When evidence of expert admissible to show that alleged agreed value
of lost property was excessive.
See Evidence, 2, 3.
Testimony of, not competent to support conclusion that policy of title
insurance should have been different in form.
See Insurance, 3.
FALSE REPRESENTATION
1. Action for Damages Will Not Lie Between Members of Two Firms
Having One Member Common to Both. One induced by the false repre-
sentations of a member of a firm to purchase the interests of his copart-
ners and take their place in a new firm, to be composed of himself and
such partner, cannot individually maintain an action against the firm to
recover the damages alleged to have resulted therefrom; nor can it be
maintained by the new firm, since an action at law for deceit will not lie
between members of two firms having one member common to both. If
any cause of action exists, the rights of the parties must be adjusted by a
court of equity. Taylor v. Thompson. 168
2. When Firm Not Liable for False Representations of Partner. Where
upon the trial of such an action it appears that the partner making the
false representations acted independently in negotiating the sale and
principally and primarily for his own benefit and not as agent of the firm,
his associates cannot be held liable in any event. Id.
INDEX. 637
FORECLOSURE.
Of mechanic's lien.
See Appeal, 3.
Sale in, when not within condemnation of statute of champerty.
See Champerty.
Of mechanic's lien — dismissal of action — when new action may be
commenced within one year thereafter.
See Liens.
FORMER ADJUDICATION.
Dismissing proceeding for an accounting when not a bar to creditor's
action to compel executor to sell real estate under power of sale for
payment of debts.
See Decedent's Estate, 1-5.
FRANCHISE TAX.
Upon foreign insurance corporation.
See Tax, 6.
FRAUD.
By agent of telephone company in obtaining grant of right to construct
lines over lands of grantor — ejectment, when maintainable.
See Ejectment, 1, 2.
Insufficiency of general allegation of.
See Pleading.
GAMBLING.
Policy — trial of indictment for.
See Crimes, 18-28.
GRADE.
Change of, in street — proceedings for damages caused thereby.
See Streets, 1,2.
GUARDIAN AND WARD.
Check Drawn by Guardian Notice to Payee That Fund Belongs to Ward —
Funds Mingled with Those of the Ward Belong Presumptively to Ward —
Burden of Proof. Checks drawn upon a guardian's account in which
moneys belonging to a corporation of which he was the manager had also
from time to time been deposited, signed by him as guardian, and given
in payment of a debt due from the corporation, give presumptive notice
to the payee that the funds paid him were not those of the corporation
or of the drawer personally, and he is put on inquiry to ascertain the
tatter's authority to apply the money in payment of the debt; presump-
tively, all the moneys in the account belong to the wards, and in the
absence of affirmative proof that at any time any particular sum on deposit
was the property of the corporation they are entitled to recover the
proceeds of the checks. Gohnfeld v. Tanenbaum. 126
Duty to furnish medical attendance to minor child imposed by statute
on guardians.
See Parent and Child, 3.
HIGHWAYS.
1. Netc York and Albany Post Road — Power of Town Officers of Town of
Hyde Park to Alter and Improve Same — Not Affected by Cfwpter 423 of
Laws of 1896. The town board and commissioners of highways of the
town of Hyde Park, Dutchess county, having had, under colonial laws
and statutes of the state prior to the enactment of chapter 423 of the
638 INDEX.
HIGHWAYS — Continued.
Laws of 1896, the power to alter and improve the New York and Albany
post road, running through that town, such power is not restricted or
taken away by the latter act, since there is nothing in the provisions
thereof that in any manner limits their jurisdiction or powers over that
highway, except in one particular, that they are prohibited thereby from
authorizing or licensing the laying of any railroad track upon the high-
way, except to cross the same; tbey have, therefore, the power, upon the
petition of a taxpayer of the town, to authorize an alteration and improve-
ment of a part of said road, lying within the town and within the
premises of the petitioner, such improvement to be made by petitioner
and at his expense, and upon the satisfactory completion thereof, to
accept the road as changed and improved. People ex rel. Dinsmore v.
Vandewater. 500
2. Power of Town Officers of Town of Hyde Park Not Restricted or Affected
by Section 77 of the (Jounty Law, Relating to tlie Alteration of State Roads.
The power of the town board and highway commissioners to authorize the
alteration and improvement in question is not restricted or made depend-
ent upon the consent of the board of supervisors of Dutchess county by
the provisions of section 77 of the County Law (L. 1892, ch. 686), provid-
ing that the board of supervisors of any county may authorize the com-
missioners of highways of any town in their county to alter or discontinue
any road or highway therein, which shall have been laid out by the state,
since it is apparent, from an examination of the Colonial Laws (Col. Laws,
1703, ch. 131; 1772, ch. 1536, and 1772, ch. 31), and the statutes of the state
(L. 1779, ch. 43; L. 1818, ch. 38), relating to the laying out, construction
and maintenance of the New York and Albany post road and other public
highways established prior to 1813, that under the colonial laws as early
as 1772, especially in Dutchess county, where the alteration in question
was made, commissioners of highways were empowered to alter highways
that were deemed inconvenient, and that this power was continued by
the state legislature in 1779 and bjr general laws in 1797 and 1813, ana*
that the same power has been continued until the present day; it follows,
therefore, that at the time of the passage of the County Law* and of chap-
ter 317 of the Laws of 1882, and even of chapter 83 of the Laws of 1817,
the substance of which statutes is contained in section 77 of the County
Law, the commissioners of highways of towns bad been given jurisdiction
over the existing colonial highways, with the power to make such needed
alterations therein as should be deemed necessary, and that power has not
been taken from them by the County Law. Id.
Rights of general public over places where land highways and navigable
waters meet.
See Title. 3.
HUSBAND AND WIFE.
Liability of Husband for Goods Purchased by Wife — Wife's Agency a Ques-
tion of Fact. A husband living with his wife, who supplies her with
necessaries suitable to her position and his own, or furnishes her with
ready money with which to pay cash therefor, is not liable for the pur-
chase price of other goods sold to her, of the same character as necessaries,
in the absence of affirmative proof of his prior authority or subsequent
sanction, the question of the wife's agency being one of fact and not a
conclusion of law to be drawn alone from the marital relation. Wana-
tnaker v. Weaver. 75
INDICTMENT.
For unlawful omission to provide medical attendance for a minor child,
when sufficient.
See Parent and Child, 1.
INDEX. 639
INFANTS.
Unlawful omission to provide medical attendance for a minor child.
See Parent and Child, 1-5.
INJUNCTION.
When Judgment debtor not entitled to injunction restraining surety from
enforcing his agreement to pay part of a joint judgment.
See Subrogation, 3.
INSANITY.
When court is justified in refusing to appoint commission to examine
defendant on trial for murder as to his sanity — instruction as to presump-
tion of sanity.
See Crimes, 7-9.
INSURANCE.
1. Title Insurance — Wliat Is Insured by Policy of. A policy of title
insurance undertaking to insure the holder thereof against all loss and
damage, not exceeding a specified sum, which the insured shall sustain
by reason of any defect or defects of title, affecting the title of the prop-
erty insured thereby and the interest of the insured therein, or by reason
of unmarketability of the title of the insured to or in the premises, or by
reason of liens or incumbrances charging the same at the date of the
policy, is a contract designed to save the insured harmless from any loss
through defects, liens or incumbrances that may affect or burden his title
when he takes it, and from the very nature of the contract it usually bears
the same date as the deed of the title which it purports to insure, and
if, in any case, there is a discrepancy between such dates it must be due
to some exceptional circumstance which should be noted in the contract.
Trenton Potteries Go. v. Title G. & T. Go. 65
2. Reformation of Policy — When Insurer Not Liable for Assessment
Levied on Property after Conveyance to Insured, but Before Date of Issuance
of Policy. Where a policy of title insurance covering five separate
pieces of property was not issued at the time the deeds of four of the
parcels were delivered and accepted, but its issuance was postponed
until after the title to the fifth parcel was perfected, evidence of the
facts and circumstances under which the contract of insurance was
made showing that there was no purpose on the part of either of
the parties to have any of the titles insured beyond the moment when
they became the property of the insured; that the issuance of a single
policy after all the titles were perfected was agreed upon as a matter of
convenience with no thought of changing the liability of the insurer from
what it would have been if a policy upon the first four titles had been
issued when the conveyances thereof were made, and that there was no
mistake as to the actual terms of the agreement expressed in the policy,
but that in reducing it to writing the real date as to a part thereof was
inadvertently omitted, will justify the trial court in reforming the policy
so as to make it conform to the actual agreement of the parties; and
the insured cannot maintain an action to compel the insurer to reimburse
the insured for the amount paid upon an assessment for a street opening,
which became a lien upon one of the four parcels three months after the
insured had taken title thereto and seven months before the policy was
issued. Id.
3. Evidence — Testimony of Experts Not Competent to Support Conclusion
That t/ie Policy Should Have Been Different in Form. Testimony of
experts in title insurance as to what they would have done, or what ought
to have been done, in the issuance of the policy in question, and as to the
custom of title insurance companies in such cases, is not admissible to
support the legal conclusion that the policy should have been different
in form. Id.
640 INDEX.
INSURANCE — Continued.
4. Life — Restriction of Power of Agents. A life insurance company
may enter into a contract with an applicant for insurance which can so fix
the precise conditions under which the policy shall issue that agents,
general or local, in the absence of express authority, cannot waive them.
Russell v. Prudential Ins, Go. 178
5. When Provision in Application for Insurance That Policy Shall Not
Take Effect until First Premium Be Paid Thereon in Full Charges Appli-
cant With Notice That Agents Without Express Authority Haw No Power
to Waive it. Where a written application for a policy of life insurance,
duly signed by the applicant, provides that the application is to become a
part of the contract of insurance applied for; that the. policy to be issued
thereunder shall be accepted subject to the conditions and agreements
therein contained; that the policy "shall not take effect until the same
shall be issued and delivered by the said company and the first premium
paid thereon in full," which provision is carried into the policy with due
reference to the same, the applicant must be presumed, in the absence of
fraud, to have read or had read to him the application before signing it,
and he is thereby advised that the policy cannot issue or take effect until
the first premium is paid thereon in full; the legal effect is that he cove-
nants directly with the company, not through its agent, that the policy is
not to be binding until the first premium is paid in full, and be is charge-
able with notice that the agent, whether general or local, cannot, without
express authority, waive such payment and deliver a valid policy. Id.
6. Same. Where it appears in an action brought upon such policy by
the beneficiary named therein that, at the time the policy was delivered
to the insured, a general agent of the company extended the time of pay-
ment of the premium for thirty days from such delivery, stating that the
insurance would go into immediate effect, and the insured died four days
thereafter, and before the premium was paid, the beneficiary cannot recover
without proof of the agent's express authority to waive the payment of
the first premium. * Id.
Benefit association — unreasonable by-laws cannot deprive members of
their rights.
See Associations, 1, 2.
INSURANCE CORPORATIONS.
Foreign — franchise tax upon.
See Tax, 6.
INTEREST.
Moneys Advanced Subject to Election of Executors to Treat Advancement
as a Loan — Interest Runs from Time of Election. Under a written instru-
ment executed by a son acknowledging that his father had furnished him
a specified sum of money; that it was not a gift, but a debt due the father;
that it might be collected after his father's decease by his legal repre-
sentatives at their election by treating it as a loan and enforcing it, or as
an advancement, deducting it from his share in the estate; when such sum
is enforced as a loan, interest should be awarded from the day when the
executors elected to treat it as such, and not from the time the money was
advanced by the father. Cole v. Andrews, 374
On claim against city of New York runs only from time of demand of
payment.
See Nkw Yokk (City of), 4.
JUDGMENT.
Modification of.
See Appeal, 3.
INDEX. 641
JURISDICTION.
County Courts — Jurisdiction of, Over Counterclaims Exceeding $3,000
in Amount. While the jurisdiction of County Courts in actions for the
recovery of money only is limited by section 14 of article VI of the Con-
stitution and section 840 of the Code of Civil Procedure to actions in
which the complaint demands judgment for a sum not exceeding $2,000,
such limitation is based wholly on the demand of the complaint, and,
after Jurisdiction of a cause of action has once been acquired, a County
Court has, under section 848 of the Code of Civil Procedure, "the same
jurisdiction, power and authority in and over the same and in the course
of the proceedings therein, which the Supreme Court possesses in a like
case; and it may render any judgment, or grant either party any relief,
which the Supreme Court might render or grant in a like case; and so
the general jurisdiction to entertain common-law actions, where the
demand for judgment in the complaint does not exceed $2,000, carries
with it the power to try and render any judgment upon any counterclaim
irrespective of the amount that the defendant may plead in his answer to
the cause of action stated in the complaint. Howard Iron Works v. Buffalo
Elevating Co, 1
Of magistrate to sentence women to state reformatory under section
146 of State Charities Law.
See Crimes, 24
LABOR LAW.
When insertion of invalid provisions of, in specifications, does not render
contract void.
See New York (City op), 7.
LEGISLATURE.
Power of, to prescribe that submerged land in city of New York should
be used for streets.
See Title, 4
LIENS.
Mechanic's Lien — Action to Foreclose — When Action Commenced Within
One Year After Filing Lien Is Dismissed for Lack of Evidence a New
Action May Be Commenced under Code Civ, Pro. % 405, Within One Tear
After Final Determination of First Action. Where a mechanic's lien was
filed January 24, 1889, and an action to foreclose the lien, duly com-
menced February 15, 1889, was dismissed "on the merits." for failure to
furnish an architect's certificate of performance of the work, by a judg-
ment entered August 4, 1899, and, on appeal, the Appellate Division, on
March 9, 1900, modified the judgment by striking therefrom the words
"on the merits," and affirmed it as modified, a new action to foreclose the
lien, commenced March 15, 1900, is not barred by the provision of the Lien
Law, that a lien shall not continue for a longer period than one year after
the notice of lien has been filed,' unless within that time an action is com-
menced to foreclose the lien, since the statute does not in express terms
prohibit an action to foreclose a lien unless that action be commenced
within one year, but enacts that the lien shall cease unless an action be
brought thereon within one year; the first action was commenced within
that time, and, therefore, the cause of action is saved by the statute (Code
Civ. Pro. § 405), which provides that if an action be commenced within
the time limited therefor, and be terminated in any other manner than by
a voluntary discontinuance, a dismissal of the complaint for neglect to
prosecute the action or a final judgment upon the merits, the plaintiff may
commence a new action for the same cause after the expiration of the
time so limited and within one year after such reversal or termination.
Conolly v. Hyams. 408
Modification of judgment in action to foreclose mechanic's lien.
See Appeal, 8.
41
642 INDEX.
LIFE INSURANCE.
Restriction of power of agents — when provision in application for
insurance that policy shall not take effect until first premium be paid
thereon in full charges applicant with notice that agents without express
authority have no power to waive it.
See Insurance, 4-6.
LIMITATION OF ACTIONS.
Little Falls (City of) — Validity of Provision* of Clwrter Prohibiting
Maintenance of Actions to Set Aside or Annul Assessments for Local
Improvements Unless Commenced within Prescribed Time and in Compliance
with Prescribed Conditions. The legislature having power to absolutely
prohibit an action to set aside, cancel or annul any assessment made for a
local improvement, such power necessarily includes the power to prohibit
the commencement of such an action unless specified conditions are com-
plied with; it, therefore, had the power to enact the provisions of the
charter of the city of Little Falls (L. 1898, ch. 190, § 83, as amd. by L.
1899, ch. 289), providing that no such action shall be maintained by any
person unless (< commenced within thirty days after the delivery of the.
assessment roll and warrant for such local improvement to the city
treasurer and notice by him in the official newspapers of the city of the
receipt thereof, and unless within said thirty days an injunction shall
have been procured by such person from a court of competent Jurisdic-
tion restraining the common council from issuing the assessment bonds
hereinafter provided to be issued for such assessment," and such pro-
vision is valid and is a bar to any action not commenced within the time,
and in compliance with the conditions, therein prescribed. Loomis v.
City of Little Falls. . 31
Acknowledgment of debt by executor prevents running of Statute of
Limitations.
See Decedent's Estate, 2.
LITTLE FALLS (CITY OF).
Validity of provision of charter prohibiting maintainance of actions to
set aside or annul assessments for local improvements unless commenced
within prescribed time and in compliance with prescribed conditions.
See Limitation op Actions.
MAGISTRATES.
Jurisdiction of, to sentence women to state reformatory under section
146 of State Charities Law.
See Grimes, 24.
HARRIED WOMEN.
Liability of husband for goods purchased by wife — wife's agency a
question of fact.
See Husband and Wife.
MECHANIC'S LIEN.
Modification of judgment in action to foreclose.
See Appeal, 3.
Dismissal of action to foreclose — when new action may be commenced
within one year thereafter.
See Liens.
MEDICAL ATTENDANCE.
When omission to furnish, for a minor child is unlawful — test of neces-
sity for — reasonable discretion — duty to furnish to minor child imposed
by statute on guardians, parents and those in loco parentis — meaning of.
See Parent and Child, 1-5.
INDEX. 643
MISAPPROPRIATION.
Discharge in bankruptcy not a defense to action for.
See Bankruptcy.
MISDEMEANOR.
Unlawful omission to provide medical attendance for a minor child.
See Parent and Child, 1-5.
MISJOINDER.
Action for damages resulting from conspiracy to wreck corporation
must be brought by corporation, not by individual stockholder.
See Corporations, 1.
MORTGAGE.
Purchase -money — when not champertous.
See Champerty.
MUNICIPAL CORPORATIONS.
Private use of public streets — presumption arising from lapse of time
that user is with consent of the public authorities may be dispelled by
proof.
See New York (City of), $-12.
MURDER.
Trial for — sufficiency of evidence — competency of evidence of threats
made by defendant — incompetency of evidence of specific acts of vio-
lence of deceased toward third person — charge.
See Crimes, 1-4.
Uxoricide — evidence of reputation for unchastity of defendant's alleged
paramour incompetent upon the question of motive — duty of trial court
as to a theory of the prosecution wholly unsupported by evidence.
See Crimes, 5, 6.
Sufficiency of evidence on trial for — insanity — when court is Justified
in refusing to appoint commission to examine defendant and report as to
his sanity — instruction as to presumption of sanity of defendant — trial,
court not bound to charge request of counsel where substantially the same
proposition has already been charged — when alleged error in charge can-
not be reviewed without an exception thereto.
See Crimes, 7-11.
Sufficiency of evidence on trial for — when judgment of conviction will
not be reversed in the absence of exceptions.
See Crimes, 12, 13.
Sufficiency of evidence on trial for — admissibility of confession pro-
cured by deception — credibility of witness thereto a question for the jury
—how competency of confession is to be determined — instruction to
jury-
See Crimes, 14-17.
NAVIGATION.
Collision at sea.
See Negligence, 3.
NEGLIGENCE.
1. When Contributory Negligence a Question of Fact A bicyclist riding
after dark between two rails of a railroad track upon a public street in
which a trench was being excavated about three feet from the track,
along which a manhole was constructed extending to within a foot of the
track, which street was closed upon that side by barricades upon which at
644 INDEX.
NEGLIGENCE— Continued.
intervals red lights had been placed, who, in order to avoid another
bicycle and a car upon the other track coming from the opposite direction,
turns out and, attempting to proceed upon the strip between the track
and the trench, falls into the manhole and is injured, is not as matter of
law guilty of contributory negligence. Walsh v. Central N. T. Tel. <J& T.
Co. 163
2. Degree of Care. Ordinary care or precaution to avoid danger must
be commensurate with the danger and will dictate and require a degree
of vigilance under one set of circumstances that would be unnecessary
under another. A refusal to charge, therefore, upon the trial of an
action to recover damages for the injury, that the red lights and the dirt
thrown up in the excavation of the trench indicated that there was dan-
ger, and that the plaintiff was bound to exercise unusual care in passing
that locality, and that by unusual care was meant greater care than would
be required in passing over a street without obstacles and in which
excavations did not appear, constitutes reversible error. Itl.
3. Collision at Sea — Erroneous Refusal to Charge. Upon the trial of
an action against a steamship company for negligence resulting in the
death of plaintiff's intestate, who was drowned as the result of a col-
lision between a steamship and a pilot schooner on which he was employed,
the defendant is entitled to have the jury instructed, in substance, that it
was the duty of those navigating the schooner, when approaching another
vessel, to have a " lookout" and keep a man at the wheel and not allow
the schooner to drift before the wind, and a refusal to charge requests to
that effect constitutes reversible error. Grube v. Hamburg-American
S. 8. Co. 888
When plaintiff may attack validity of grant obtained from him by
fraud although negligent in failing to read instrument.
See Ejectment, 1, 2.
In construction and maintenance of sewer.
See Trial, 5.
NEW YORK (CITY OF).
1. Board tf Education, Not tfie City, tlte Proper Party Defendant in Suits
Relating to School Funds. Under the provisions of the charter of the city
of New York (L. 1901, ch. 466) the only relation that the city has to the
subject of public education is as the custodian and depositary of school
funds, and its only duty with respect to that fund is to keep it safely and
disburse the same according to the instructions of the board of education.
The city, as trustee, has the title to the money, but it is under the care,
control and administration of the board of education, and all suits in
relation to it must be brought in the name of the board. A suit to recover
teachers' wages is a suit affecting or in relation to the school funds and
under the express words of the statute must be brought against the board.
Gunnison v. Bd. Education City of N T. 11
2. Same. An action brought by a school teacher in the city of New
York, to recover wages or salary, when the only object and purpose of
such action is to establish the validity of a disputed claim and liquidate
the amount, must be brought against the board of education and not
against the city. Id.
8. Board of Education an Independent Corporation, Not a City Agency.
The mere fact that the legislature has made the board of education a mem-
ber of one of the administrative departments of the city of New York
does not indicate an intent to devolve upon the city itself, acting through
one of its departments, the state functions which were formerly directly
imposed upon the board as a separate public corporation and to relegate
it to an agency similar to that occupied by the police, fire, health and other
INDEX. 645
NEW YORK (CITY OF) — Continued.
city departments, o( which the city is the responsible head ; nor does the
fact that the charter (§ 1055) expressly authorizes the board to brine
suits affecting school property exclude the idea that it may also defend
them and prevent it from becoming a party defendant in such cases; nor
does section 1614, requiring future suits against the city to be in the cor-
,porate name of the city of New York, have any application, since such
suits are not against the city but are against another and independent
corporation, namely, the board of education.
The fact that the charter enumerates among the administrative depart-
ments of the city the board of education, calling it the "Department of
Education," of which the board is the head, does not make any change in
the corporate powers, duties or liabilities of the board and, therefore, does
not affect its legal capacity to sue and be sued.
Nor does the fact that the board is the head of the department exempt
it from such suits because it is not a mere agent of the city but is an
independent corporate body whose acts are not the acts of the city and for
which the city is not responsible. Id.
4. Interest on Claim against City — Runs Only from Time of Demand of
Payment. When a judgment is recovered against the city of New York
for various sums due upon a contract for paving certain streets, interest
cannot be awarded upon such claims from the maturity thereof, but only,
from the time that payment was demanded. (/Keeffe v. City of New York.
29?
5. Paytnent to De Facto Clerk Is a Defense to Action for Salary by De Jure
Clerk. When a clerk in the office of the board of aldermen of the city of
New York, who had been removed and another appointed in his place,
was reinstated by mandamus because he had been removed without "an
opportunity to present an explanation in writing," the city is not liable to
such clerk for the salary of the position in question during the period
between the date of his removal and the date of his reinstatement, where
during that interval the salary of the position was paid to another, who,
by an appointment regular upon its face, held the position, performed
the duties thereof and was paid: the compensation attached thereto. Mar-
tin v. City of New York. 371
6. Power of New East River Bridge Commissioners— Ch. 789, L. 1895 —
Provisions in Specifications Limiting Competition Neither Illegal nor
Fraudulent. General allegations in a taxpayer's action to annul a con-
tract made by the commissioners of the New East River bridge in the
city of New York for the construction of the bridge, that the com-
missioners fraudulently prescribed in their notices and specifications
that proposals would be received from those bidders only who possessed
plants requisite to do the work and whose plants had been in successful
operation for at least one year, and that there would be excluded steel
containing more than a specified percentage of foreign elements " with the
purpose and intent of limiting competition and confining the same to a
small class of bidders," and also charging that the cost of the work was
increased thereby, in the absence of any allegations of fact except the
statement that their action was taken with the purpose and intent of limit-
ing the class of bidders, are insufficient to support the charge of fraud,
since under the act directing the construction of the bridge (L. 1895, ch.
789, § 8) the power of the commissioners, which was not limited or qual-
ified by subsequent charter provisions, was plenary and they were not
limited to the performance of the work by contract or by competition,
and, therefore, their intent to limit competition, both in the class of con-
struction or as to character of material, was in itself neither illegal nor
fraudulent. Knowles v. City of New York. 480
7. Insertion of Invalid Provisions of Labor Law Does Not Render Contract
Void. The fact that the commissioners required the insertion of pro-
646 INDEX.
NEW YORK (CITY OF) — Continued.
visions of the Labor Law in the contract which were subsequently held
invalid, even if their action was illegal, does not make it fraudulent,
and the insertion of such provisions in the contract does not render it void
assuming that they increased the cost of the work; the contract may be
enforced, although but partially performed, especially as the commissioners,
if the invalidity of such provisions avoided the contract, might have
immediately, without competition or advertisement, entered into a new
contract with the same contractor, and they, therefore, had power to
waive illegal conditions and to continue the contract in force. Id.
8. Private Use of Public Streets — Presumption Arising from Lapse of Time
That User Is With Comehtofthe Public Authorities May Be Dispelled by Proof.
Where a vault has existed under a sidewalk for more than twenty years
and no objection has been made, as between the owner and a third person,
it will be presumed that it was originally constructed with the assent of
the public authorities, and the same presumption will obtain as against a
municipality if there is no proof to overcome it. This presumption is
not that the owner or his grantors acquired any right to the use of the
street by prescription or without the consent of the proper authorities,
but that from such use it might be presumed that the proper consent was
given. It is, however, a presumption only which may be dispelled by
proof. It is not a presumption of a grant of the title or of a permanent
right in the street, as no power exists in the authorities to make such a
grant or to confer any such right. The title to the streets being in the
city as trustee for the public, no grant or permission can be legally given
which will interfere with their public use. The right of the public to
the use of the streets is absolute and paramount to any other. A presump-
tion of or even an actual consent by the authorities to their use for private
purposes is always subject and subordinate to the right of the public
whenever required for public purposes, and such a grant or right cannot
be presumed when it would have been unlawful. Deshong v. Uityof New
York. 475
9. Reconstruction of Vault Under Sidewalk — When Payment for Permit
Involuntary. A payment made by an abutting owner to municipal
authorities for a permit to reconstruct a vault under a sidewalk in the
city of New York, enforced by threats of arrest and by taking possession
of bis property, is. if such authorities had no authority to exact it. not so
far voluntary as to prevent him from maintaining an action for its
recovery. Id.
10. When Reconstruction May Be Made WitJiout Permit or Additional
Comper*sation. Assuming that, a proper permit had been previously
granted him for the construction of the old vault, such owner has the
right to continue the new vault without an additional permit or further
compensation, subject, however, to the condition that its continuance will
not interfere with the street or impair its use by the public. Id.
11. Collation of Statutes Relating to Use of Public Streets for Vaults.
Statutes relating to the use of public streets in the city of New York col-
lated and discussed, showing that from 1857 there has been continuous
authority in the boards and officers mentioned therein to give permits for
building and repairing vaults, and that since 1859 such permits and the
applications therefor have been required to be in writing and to be kept in
the proper office. Id.
12. When Presumption of Lawful User Is Dispelled by Proof— Question
of Fact. Where the plaintiff in such an action fails to prove the requisite
written permit for the construction of the old vault, but relies upon the
fact that it had been in existence since 1876, at least twenty-one years
prior to the commencement of the action, without protest or interference
from the city authorities, while a presumption is created that a permit
was given by them, where there is proof that records of such permits were
INDEX. 647
NEW YORK (CITY OF) — Continued,
kept and that there was no record or index of any such permit in the
proper office, the presumption is dispelled, or at least a question of fact
arising upon conflicting evidence is presented, which if found against the
plaintiff will preclude his recovery. Id.
Office of deputy tax commissioner excepted from provisions of Civil
Service Law.
See Civil Service.
Street improvement — when city not liable for damages caused by mis-
takes of city surveyor in fixing grades.
See Contract.
Jurisdiction of magistrate in, to sentence women to state reformatory
under section 146 of State Charities Law.
See Crimes, 24
Damages arising from negligence of contractor — bond to indemnify
city — impairment of indemnitors' rights.
See Principal and Surety.
Condemnation by, of rights of owners of waters of inland pond and
rights of owners of land surrounding the pond and under waters of the
same — when owner of bed of pond entitled to substantial damages.
See Riparian Rights, 8.
Effect of assessment made while proceeding for condemnation of prop-
erty by city is pending — tax not a lien, when title passed to city before
confirmation of assessment roll.
See Tax, 1.
Title to lands under water — title to lands in the public streets held in
trust — rights of genernl public over places where land highways and
navigable waters meet — power of legislature to prescribe that submerged
land should be used for streets — conveyance by city of pier not a con-
veyance in fee of land covered by the pier — effect of covenants contained
fn prior deeds of adjoining land under water to same grantee — action
predicated upon title in fee not maintainable.
See Title, 1-5.
NOTICE.
• Check drawn by guardian is notice to payee that fund belongs to ward.
See Guardian and Ward.
OFFICEBS.
Constitutional prohibition against use of free railroad passes by public
officers applies to palace and sleeping car passes.
See Constitutional Law, 1.
Invalidity of resolution of board of supervisors attempting to extend
term of town officers.
See Towns.
PABENT AND CHILD.
1. Misdemeanor — Unlawful Omission to Provide Medical Attendance for a
Minor Child — When Indictment Therefor Sufficient — When Omission to
Furnish Medical Attendance Is Uunlawful. An indictment under section
288 of the Penal Code, providing that "A person who, 1, willfully
omits without lawful excuse, to perform a duty by law imposed upon
him to furnish food, clothing, shelter or 'medical attendance to a minor
* # *
of this section
or, 4, neglects, refuses or omits to comply with any provisions
section, * * * is guilty of a misdemeanor," which charges
648 INDEX.
PABENT AND CHILD — Continued,
that the defendant willfully, maliciously and unlawfully omitted, with-
out lawful excuse, to perform a duty imposed upon nim by law, to
furnish medical attendance for his minor child, said minor being ill and
suffering from catarrhal pneumonia, and that he willfully, maliciously
and unlawfully neglected and refused to allow said minor to be attended
and provided for oy a regularly licensed and practicing physician, is not
bad because it fails to allege that the case was one in which a regularly
licensed and practicing physician should have been called, and, therefore,
fails to charge a criminal offense, since that is necessarily implied from
the language used; if the medical attendance was not necessary it was
not a duty required of the defendant to furnish it; if it was necessary
then it was his duty to furnish it and his failure to do so is an unlawful
omission to perform a duty imposed, and constitutes a misdemeanor.
People v. Pierson. 201
2. Test of Necessity for Medical Attendance — Reasonable Discretion.
The necessary medical attendance required for the preservation of
the health of the child does not contemplate the necessity of calling a
physician for every trifling complaint with which the child may be
afflicted, which in most instances may be overcome by the ordinary house-
hold nursing by members of the family; a reasonable amount of discretion
is vested in persons upon whom the duty is imposed, and the standard is,
at what time would an ordinarily prudent person, solicitous for the welfare
of the child and anxious to promote its recovery, deem it necessary to call
in the services of a physician. Id\
8. Duty to Furnish Medical Attendance to Minor Child Imposed by
Statute on Guardians, Parents and Thou in Loco Parentis. The phrase
"a duty by law imposed" has reference to persons designated in the
statutes and in the common law as parents, guardians or those who by
adoption or otherwise have assumed the relation in loco parentis, and
the character of the duties is specified in the section, and, therefore,
assuming that such persons were not bound at common law to furnish
medical attendance for minors, that duty is expressly provided for and is
made obligatory upon them by the statute. Id.
4. Meaning of "Medical Attendance." The term "medical attend-
ance" means attendance by a person who under the statute (L. 1880,.
ch. 513) is a regularly licensed physician, and does not include that by a
layman who, because of his religious belief that prayer for Divine aid
was the proper remedy for sickness, neglects to furnish proper medical
attendance to a minor child who was dangerously ill. Id.
6. Constitutional Guaranty of Freedom of Worship Not Violated by
Statutory Requirement. The constitutional guaranty of the full and
free enjoyment of religious profession and worship (Const, art. 1, § 3)
is not violated by the statute, since practices inconsistent with the peace
and safety of the state are not justifiable, and the peace and safety of the
state involves the protection of the lives and health of its children as well
as obedience to its laws — the omission, therefore to afford this protection
is a public wrong and properly punishable as such. Id.
PARTTE&
Board of education, not the city of New York, the proper party defend*
ant in suits relating to school funds.
/SmNew York (City op), 1-3.
In actions for partition.
See Partition.
To proceeding for damages caused by change of grade in street.
See Streets, 2.
INDEX. 649
PARTITION.
Parties. One claiming title in hostility to the plaintiff in an action of
partition may properly be made a party defendant. Wallace v. McEchron.
424
PARTNERSHIP.
Action for damages will not lie between members of two firms having
one member common to both — when firm not liable for false representa-
tions of partner.
See False Representations, 1, 2.
PASS.
Constitutional prohibition against use of free railroad passes by public
officers applies to palace and sleeping car passes.
See Constitutional Law, 1.
PAYMENT.
To foreign administrator after appointment of administrator in this
state — when discharges debt.
See Executors and Administrators.
When payment for permit to reconstruct a vault under a sidewalk
involuntary.
See New York (City of), 9.
PENAL CODE.
1. § 288 — Misdemeanor — Unlawful Omission to Provide Medical Attend-
ance for a Minor Child — When Indictment Therefor Sufficient— W hen
Omission to Furnish Medical Attendance Is Unlawful. An indictment
under section 288 of the Penal Code, providing that "A person who, 1,
willfully omits without lawful excuse, to perform a duty by law imposed
upon him to furnish food, clothing, shelter or medical attendance to a
minor * * * or, 4, neglects, refuses or omits to comply with any pro-
visions of this section, * * * is guiltv of a misdemeanor," which
charges that the defendant willfully, maliciously and unlawfully omitted,
without lawful excuse, to perform a duty imposed upon him by law, to
furnish medical attendance for his minor child, said minor being ill and
suffering from catarrhal pneumonia, and that he willfully, maliciously
and unlawfully neglected and refused to allow said minor to be attended
and provided for by a regularly licensed and practicing physician, is not
bad because it fails to allege that the case was one in which a regularly
licensed and practicing physician should have been called, and, therefore,
fails to charge a criminal offense, since that is necessarily implied from
the language used; if the medical attendance was not necessary it was
not a duty required of the defendant to furnish it; if it was necessary,
then it was his duty to furnish it, and his failure to do so is an unlawful
omission to perform a duty imposed, and constitutes a misdemeanor.
People v. Pierson. 201
2. § 842— Privilege of. Witness. Section 842 of the Penal Code, provid-
ing that " No person shall be excused from giving testimony upon any
investigation or proceeding for a violation of this chapter upon the ground
that such testimony would tend to convict him of a crime; but such tes-
timony cannot be received against him upon any criminal investigation or
proceeding," is not coextensive with the constitutional provision and does
not afford the witness the protection contemplated thereby, in that it does
not prevent the use of evidence against him which may be obtained
through his testimony, but simply excludes such testimony. People ex
rel. Lewisohn v. O'Brien. 258
8. Idem. A witness produced by the prosecution before a magistrate
on an information charging the defendant with keeping a gambling house,
may properly refuse to answer questions as to whether he had ever been
in the place in question, upon the ground that his answers might tend to
650 INDEX.
PENAL CODE— Continued.
incriminate him, since the statute does not afford him the full protection
accorded by the constitutional provision. Id.
4. §§ 344a, 344$ — When Admission of Private Papers in Evidence Not
Violative of Constitutor at Guaranty Against Compelling Prisoner to Be a
Witness Against Himself — Const. Art. 1, § 6. The admission In evidence
upon the trial of an indictment under section 344a of the Penal Code,
relating to policy playing, of private papers and property belonging to
the defendant, alleged to have been unlawfully seized by police officers
and introduced by the prosecution for the purpose of establishing his
handwriting on certain policy slips, and to show that the office in which
they were found was occupied by him, does not compel him to become a
witness against himself in violation of section 6 of article 1 of the Consti-
tution of the state of New York. People v. Adams. 851
5. Idem — Crimes — Policy Gambling — Constitutionality of Sections 344a
and 3446 of Penal Code— What Public Officers May Lawfully Be in Posses-
sion of Apparatus lined in Game of Policy. Section 344a of the Penal
Code, creating the crime of " policy " gambling and making it unlawful
for any person to have in his possession the apparatus tjierefor, is not an
unauthorized interference with the ownership of private property and is
constitutional. Section 344b, making the possession by any person other
than a public officer of such apparatus " presumptive evidence of posses-
sion thereof knowing!}' and in violation of" the preceding section, creates
no offense, but simply prescribes a rule of evidence within the power of
the Legislature, and is also constitutional. Neither section depends upon
the other, each being complete in itself. The public officers intended to
be excepted by the Legislature are those who, in the discharge of their
official duties, are necessarily at times the custodians of the apparatus,
and this provision, therefore, is not objectionable as class legislation. Id.
6. §675 —The State Charities Law — Jurisdiction of New York City
Magistrate to Sentence Women to State Reformatory at Bedford under Section
146 Thereof — Conviction Must Be for Offenses Enumerated Therein. Under
section 146 of the State Charities Law (L. 1896, ch. 546, as amd. by L.
1899, ch. 632), providing that " A female, between the ages of fifteen and
thirty years, convicted by any magistrate of petit larceny, habitual
drunkenness, of being a common prostitute, of frequenting disorderly
houses or houses of prostitution, or of a misdemeanor, ana who is not
insane, nor mentally or physically incapablo of being substantially bene-
fited by the discipline of either of such institutions, may be sentenced and
committed to * * * the New York State Reformatory for Women at
Bedford,0 a magistrate of the city of New York has no jurisdiction to
sentence a woman to such reformatory unless she is convicted of one or
more of the offenses enumerated therein, and a conviction thereunder is
improper where it is impossible to determine, from the records and papers
relating to the conviction and sentence returned upon writs of habeas
corpus and certiorari allowed in her behalf, whether she was convicted of
being a prostitute, either "public" or "common," assuming these terms
to be practically synonymous, or on the charge of " disorderly conduct; "
but, assuming that it is reasonably certain that the magistrate intended to
convict the relator of "disorderly conduct/' then the conviction is not a
valid conviction for a misdemeanor, and, therefore, within the purview of
the State Charities Law, unless the offense complained of constitutes a
misdemeanor as defined by law; and where the record fails to show that
the disorderly conduct complained of comes within the meaning of section
1458 of the Consolidation Act, which seems to have been incorporated into
the Greater New York charter, or that of section 675 of the renal Code,
relating to the offense of disorderly conduct, so that it constitutes the
offense of " disorderly conduct," as therein denned, and, therefore, is a mis-
demeanor, the relator is properly discharged from custody. People ex rel.
Cla~k v. Keeper, etc. 465
INDEX. 651
PENAL CODE— Continued.
7. § 687a — Constitutionality of Indeterminate Sentence Law. Section
687a of the Penal Code, fixing a maximum and minimum sentence for
prisoners, must be considered in connection with the law relating to
prisons, permitting the parole of such prisoners, is a merciful exercise of
legislative power and is constitutional. People v. Adams. 851
PERSONAL BIGHTS.
Witness in any criminal case not compelled to give any evidence against
himself.
See Constitutional Law, 2-4.
PHYSICIANS AND SURGEONS.
"Medical attendance" means attendance by a regularly licensed
physician.
See Parent and Child, 4.
PIEBS.
Conveyance by the city of New York of pier not a conveyance in fee of
land covered by the pier.
See Title, 5.
PLEADING.
Insufficiency of General Allegation of Fraud. General allegations of fraud
are of no value in stating a cause of action; the facts or intent must be
stated in such a manner that the court may see whether they were
fraudulent or not. Knowlesy. City of New York. s 430
POLICY.
Gambling — trial of indictment for.
See Crimes, 18-28.
Of title insurance — reformation.
See Insurance, 1-8.
Of life insurance — restriction of power of agents to waive conditions.
See Insurance, 4-6.
POWEBS.
Section 220 of Tax Law, imposing transfer tax upon the exercise of a
power of appointment, constitutional.
See Tax, 4, 5.
PRACTICE.
1. Continuance of Action in State Court Against Receivers Appointed by
Federal Court after Their Discharge — Code Civ. Pro. § 766. An action
against railroad receivers appointed by a federal court brought in the
Supreme Court of the state of New York under the Revised Statutes of
the United States, authorizing the bringing of actions without previous
leave of the court against a receiver appointed by a federal court in
respect to any act or transaction of his in carrying on the business con-
nected with the property, is not necessarily terminated as to them by their
subsequent discharge and the transfer of the property pursuant to a
decree of foreclosure and sale made by the federal court, and the plaintiff
is not obliged to substitute the purchaser thereunder as defendant before
proceeding to judgment; under section 756 of the Code of Civil Pro-
cedure, in case of a devolution of liability, the court may substitute the
party upon whom the liability is devolved, but when it does not,
the action is properly continued against the original parties. Boer v.
McCullough. 97
2. Same. The fact that the statute authorizing the bringing of the
action contains the provision, " But such suit shall be subject to the gen-
eral equity jurisdiction of the court in which such receiver was
652 INDEX.
PRACTICE — Continued.
appointed," does not require the discontinuance of the action against the
receivers after their discharge, upon the ground that the federal court
having provided by the decree a method for establishing claims against
the fund that was m the hands of the receivers, that method is exclusive;
since Congress intended to permit claims to be established through the
ordinary local judicial machinery, although their payment must be decreed
by the federal court alone, especially in a case where the decree makes no
provision that the method therein provided is exclusive and assures all
the creditors that their claims, whether established or not at the time of
the sale of the property, shall be paid. Id.
Election of remedies. *
See Assignment, 1, 2.
What costs may be recovered by landowner successfully defending
condemnation proceeding.
See Costs.
Erroneous direction of sale by referee.
See Decedent's Estate, 5.
Action to foreclose mechanic's lien — when action commenced within
one year after tiling lien is dismissed for lack of evidence a new action
may be commenced within one year after final determination of first
action.
See Liens.
When question whether judgment for money may be recovered is
dependent upon decision of equitable questions the issue is not triable by
jury as a matter of right.
See Trial, 3.
PRESUMPTIONS.
Presumption of lawful user may be dispelled by proof.
See New York (City op), &-12.
PRINCIPAL AND AGENT.
Liability of husband for goods purchased by wife — wife's agency a
question of fact.
See Husband and Wife.
Restriction of powers of life insurance agents.
See Insurance, 4-6.
PRINCIPAL AND SURETY.
Impairment of Indemnitor's Rinhte — Question of Fact. In an action
upon a bond given to the city of New York as a substitute for moneys
retained by the comptroller under a contract for laying water mains, to
meet claims for damages which might arise from the negligence of the
contractor, it appeared that a judgment based upon his negligence had
been obtained against the city and the contractor; that both appealed; that
thereafter the city, against his protest, settled by paying less than the
amount of the judgment, but left it intact as to him, of all of which the
surety had no notice, nor was it given an opportunity to say whether it
would further indemnify the city on the condition that it would either
prosecute the appeal or permit the surety to do so; that the reason given
for the city's action was that while counsel believed there might be a
reversal, he believed there would be another recovery in as great if not
greater amount, and ho deemed it wise to secure a reduction as the bond
secured less than half of the amount of the judgment. It also appeared
that after the settlement the city brought an action on a bond executed by
the contractor at the time of the contract and conditioned for its faithful
INDEX. 653
PRINCIPAL AND SURETY— Continued.
performance in which it sought to recover the full amount paid in settle-
ment of the judgment, which action was still pending. Held, that it was
a question of fact, 1, whether or not the settlement was made in bad faith.
2. If so made, did it operate to the injury of the principal and surety? If
made in bad faith with the intention of injuring the principal and surety,
the plaintiff cannot recover unless it shows that its action did not operate
to the disadvantage of either, or if it did to some extent, that, after deduct-
ing the amount of damage done to them, there still remained something
due on the bond. A judgment of the Appellate Division, therefore, which
reverses an order setting aside a verdict directed In plaintiff's favor and
restores the original judgment entered thereon must be reversed and a
new trial granted in order that the defendants may have an opportunity of
presenting these questions to a jury. City of New York v. Baird. 269
PROCESS.
Failure to legally serve non-resident devisee with process in creditor's
action to compel sale of decedent's real property for payment of debts
fatal to judgment.
See Decedent's Estate, 4.
PROSTITUTION.
Jurisdiction of magistrate to sentence woman to state reformatory under
section 146 of State Charities Law.
See Chimes, 24.
RAILROADS.
" Measure of damages where a portion of a tract of land is taken for use
of railroad.
See Eminent Domain.
Power of commissioners under grade crossing acts to change general
plan.
See Buffalo (City of).
Constitutional prohibition against use of free railroad passes by public
officers applies to palace and sleeping car passes.
See Constitutional Law, 1.
Railroad company entitled to be made a party to proceeding for dam-
ages caused by change of grade in street owing to alteration of crossing.
See Streets, 2.
REAL PROPERTY.
When purchase-money mortgage not champertous.
See Champerty.
Creditor's action to compel executor to sell real estate under power of
sale for payment of debta.
See Decedent's Estate, 1-5.
Grant obtained by fraud — when plaintiff may attack its validity
although negligent in failing to read it.
See Ejectment, 1, 2.
When a deed of land bounded by and surrounding inland pond does
not convey the land under waters of the pond — when conveys easement
or right to overflow such land with waters collected and stored by dam
leaving title and benefits thereof in grantor — effect of agreement by
grantor to buy back easement if not used by grantee — condemnation of
rights of owners — when owner of bed of pond entitled to substantial
damages therefor.
See Riparian Rights, 1-3.
654 INDEX.
REAL PROPERTY— Continued.
Effect of assessment made while proceeding for condemnation of
property by city is pending.
See Tax, 1.
When state tax deed void for failure of comptroller to give statement of
unpaid taxes on land when requested by owner.
See Tax, 2, 8.
RECEIVERS.
Appointed by federal court — continuance of action in state court
against, after their discharge.
See Practice, 1, 2.
Disqualification — judicial notice of population of county.
See Trial, 2.
REMEDIES.
Election of.
See Assignment, 1, 2.
RES AD JUDICATA.
When creditor not barred from taking under assignment by judgment
in action by him to set it aside.
See Assignment, 2.
RETURN.
To certiorari to review determination of town board made by majority
of board is conclusive.
See Certiorari.
REVERSAL.
When erroneous rulings on trial will not justify.
See Appeal, 1.
1 R. S. 739, §§ 147, 148— Champerty— When Purchase- Money Mort-
gage Not Champertou*. Judicial sales are not within the condemnation of
the Statute of Champerty (1 R. S. 789, §§ 147, 148; Real Property Law,
1895, ch. 547, § 225); a purchaser of land sold under a decree in a fore-
closure action acquires a perfect title, although at the time the premises
are in the actual possession of one claiming title thereto under a tax deed;
a mortgage executed by him on the same day to the plaintiff to secure a
part of the purchase price is not void under the statute since the deed and
the mortgage take effect at the same instant, constituting but one act, and
the mortgagee, to the extent of his mortgaged interest, whether it be con-
sidered a lien or a conditional estate, must be regarded as much a pur-
chaser at the judicial sale as the mortgagor, and acquires the title not
from him but through him as a mere conduit; the assignee of such pur-
chase-money mortgage who forecloses it and bids in the premises acquires
the title thereto ana may maintain an action of ejectment for their
recovery. De Garmo v. Phelpe. 455
REVIVAL.
Continuance of action in state court against receivers appointed by fed-
eral court after their discharge.
See Practice, 1, 2.
RIPARIAN RIGHTS.
1. When a Deed of Land Bounded by, and Surrounding, Inland Pond
Does Not Convey the 'Land under Waters of the Pond. Where the owner
of a pond, or a portion thereof, and of the lands surrounding the same,
executed and delivered to the owner of a mill site upon a river through
INDEX. 655
RIPABIAN B.1GHT&— Continued.
which flowed the waters from the pond, a deed containing a description
bounding all of the lands surrounding the pond owned by the grantor,
followed by the words *' being all the land on both sides of By ram
River and Byram Pond that will be overflowed by the waters of Byram
River and Byram Pond in consequence of the erection of a dam across
said Byram River, southerly of lands hereby conveyed, of sufficient
height to raise the waters in Byram Pond eight feet and two-tenths
above its present level and the above-described land is conveyed
* * * only for the purpose of being flowed by said pond," which
deed was followed by another from the same grantor to the same grantee
containing substantially the same description and provisions contained in
the former deed, with the exception that it gives the right to raise the
water of the pond twelve feet instead of eight; such deeds convey the
and on the sides of the pond for flowage purposes only, not that of
the pond itself, i. «., the land bordering upon and bounded by the
waters of the pond which might be overflowed by the raising of the
dam, leaving the title to the land then under the waters of the pond
remaining in the grantor. Matter of Brookfield. 188
2. When Deed of Land Surrounding Pond Conveys Basement, or Bight, to
Overflow Such Land with Waters Collected and Stored by Bam, Leaning Title
and Benefits Thereof in Grantcr — Effect of Agreement by Grantor to Buy
Back Easement if Not Used by Grantee. The ordinary and formal parts of
such deeds, in terms including all hereditaments and appurtenances
belonging to the land thereby conveyed, must be construed with the pro-
vision limiting the land conveyed to ''all the land on both sides of
Byram River and Byram Pond that will be overflowed * * * in
consequence of the erection of the dam across said Byram River/' and
with the provision that the land is conveyed "only for the purpose of
being flowed by said pond," which provisions are the essential features,
the real essence of the contract, and should be given force and effect in
preference to such formal parts; so construed, the deeds conveyed to the
grantee a mere easement to have the waters collected by the dam overflow
such land, leaving the fee, possession and use thereof, in connection with
the upland, in the grantor, subject only to such right of flowage; and a
subsequent provision of such deeds that in case the grantee should not use
the Jan d thereby conveyed for flowage purposes, then the grantor, his heirs
and assigns, should buy back such lands at a price to be agreed upon, or
settled by arbitration, is not a condition subsequent to the revesting of
the title in the grantor, but is a mutual agreement of the parties which
could be enforced by either and does not affect the question as to the
interest or title conveyed by the deeds. Id.
8. Condemnation of Bights of Owners of Waters of Inland Pond and Bights
of Owners of Land Surrounding the Pond and under Waters of the Same in
Proceeding by City of New York under Chapter 189 ofLawsoflMfc— When
Owner of Bed of Pond Entitled to Substantial Damages Therefor, Where the
city of New York, in a condemnation proceeding instituted under the stat-
ute (L. 1893, ch. 189), providing for the protection of the sources of its
water supply, has acquired the right of the grantee named in the deeds in
question to maintain the dam across Byram river and use the waters col-
lected and stored therein, and has also acquired from the successor in title
of the grantor named in such deeds the title to the lands surrounding
Byram pond, for which the commissioners of appraisal awarded sub-
stantial damages, but awarded only nominal damages for the bed of the
pond, he is entitled to a new appraisal awarding him substantial compensa-
tion for his right to use the pond in connection with the upland for
domestic purposes, the harvesting of ice, etc., and also for his right to
repurchase his interest in the lands surrounding the pond as provided for
in the deeds, since such rights are real, entitling him to substantial dam-
ages upon their being taken from him, pursuant to the provisions of the
act under which the condemnation proceedings were instituted. Id.
656 INDEX.
ROCHESTER (CITT OF).
Water company incorporated for the purpose of supplying water to
towns and villages adjacent to city — when it may lay its water mains and
pipes through city.
See Water Works, 1-6.
gAT,AT*TTEfl,
When payment to de facto clerk is a defense to action for salary by de
jure clerk.
See New York (City op), 5.
SALE.
Judicial sales not within condemnation of Statute of Champerty.
See Champerty.
When firm not liable for false representations of partner.
See False Representations, 1, 2.
SCHOOLS.
In New York city — board of education, not the city, the proper party
defendant in suits relating to school funds.
See New York (City op), 1-8.
8EABCH WARRANT.
When evidence of non-existence of, immaterial.
See Crimes, 28.
SERVICES.
When payment to de facto clerk is a defense to action for salary by de
jure clerk.
See New York (City op), 5.
SESSION LAWS.
1779, Ch. 81. See par. 9, this title.
1797, Ch. 48. See par. 9, this title.
1. 1807, Ch. 115— New Ycrk City— Title to Land* Under Water. The
title of the city of New York in the tideway and the submerged tends of
the Hudson river granted under the Donganand Montgomerie charters and
acts of the legislature (L. 1807, ch. 115; L. 1826, ch. 58; L. 1887, ch. 182)
was not absolute and unqualified, but was and is held subject to the right
of the public to the use of the river as a water highway. Knickerbocker
Ice Co, v. Forty-second St., etc., B. B. Co. 408
1818, Ch. 88. See par. 9, this title.
1817, Ch. 88. See par. 9, this title.
1826, Ch. 58. See par. 1, this title.
2. 1887, Ch. 182 — Power of Legislature to Prescribe that Submerged Lands
Should Be Used j or Streets. The legislature had the power in granting
submerged lands to the city of New York (L. 1887, ch. 182) to prescribe
that such lands should be used for the purpose of an exterior street to
which other streets then intersecting the river should be extended. Knick-
erbocker Ice Co. v. Forty second St., etc.t B. B. Co. 408
See, also, par. 1, this title.
8. 1880, Oh. 518 — Meaning of " Medical Attendance:* The term " medi-
cal attendance" means attendance by a person who under the statute (L.
1880, ch. 518) is a regularly licensed physician, and does not include that
by a layman who, because of his religious belief that prayer for Divine
INDEX 657
SESSION LAWS — Continued.
aid was the proper remedy for sickness, neglects to furnish proper medi-
cal attendance to a minor child who was dangerously ill. People v. Pier-
son. 201
1882, C h. 817. See par. 9, this title.
1883, Ch. 410. See par. 14, this title.
4. 1883, Ch. 113 — Streets— Change of Grade — Proceedings for Damages
Caused Thereby — Construction of Statutes Relating Thereto. The stat-
ute (L. 1883, ch. 113, as amd. by L. 1881, ch. 281, and L. 1894, ch. 172)
providing that "whenever the grade of any street * * * in any
incorporated village shall be changed so as to injure or damage the
buildings or real property adjoining such highway, the owners thereof
may apply to the Supreme Court for the appointment of three commis-
sioners to ascertain and determine their damages, which damages shall be
a charge upon the village * * * chargeable with the maintenance of
the street * * * so altered or changed," was not superseded or repealed
by the provisions of the Village Law (L. 1897, ch. 414, § 159, and § 342,
subd. 4), providing for the assessment and payment of damages when the
grade of a street shall be changed by the authorities of a village having
the exclusive control and jurisdiction of the street, except in so far as the
provisions of the former statute might apply to a change of the grade of
a street, within the exclusive control ana jurisdiction of a village, when
made by the legally constituted authorities thereof. Matter of Torge v.
Vil. of Salamanca. 824
5. Idem — Same — When Proceeding for Damages Caused by Change of
Ora^e in Street Mag Be Instituted and Maintained — Parties to Such Pro-
needing. Where a railroad crossing over a village street was changed
from a grade to an undergrade crossing by the railway company and
the authorities of the village, pursuant to an order of the board of rail-
road commissioners, acting under the provisions of the Railroad Law
relating to the change of railroad crossings at grade, in furtherance of
public safety (L. 1890, ch. 565, §§ 62-69), whereby an alteration of the
grade of the street in front of property abutting thereon was rendered
necessary, the owner of the property may institute and maintain a pro-
ceeding for the damages caused by such alteration under chapter 113,
Laws of 1888, since all that is necessary to bring the case within this
statute is that the grade shall be legally changed or altered; but, as the
damages for which recovery is sought were caused by an improvement
toward the expense of which the railroad company is required to contrib-
ute its ratable proportion, the company is entitled to be made a party to
the proceeding, and to be heard therein, as provided by the Railroad
Law. Id.
1884, Ch. 281. See par. 4, this title.
6. 1888, Ch. 345 — Buffalo Grade Crossing Act — Power of Commissioners
under Grade Crossing Acts to Cfiange General Plan. Under the Buffalo
Grade Crossing Acts (L. 1888, ch. 345; L. 1890, ch. 255; L. 1892, ch. 353)
providing that : 1. The general plan to be adopted may be amended only
in matters of detail. 2. It shall not be extended beyond the general plan
heretofore adopted under which contracts have been entered into. 8.
Contracts heretofore or hereafter made with railroad companies may be
changed by agreement between the contracting parties, but not otherwise
— where the commissioners in March, 1893, adopted a general plan which
provided for no change in the grade of a railroad running through the
city as then constructed and operated, they cannot compel the railroad
company to change the elevation of its tracks and reconstruct its terminal
structures, sidings and switches to comply with a plan proposed and
42
658 INDEX.
SESSION LAWS — Continued.
adopted in 1899, which is an extension of the general plan of 1898, and
not a modification, in some details, of that plan. Lehigh Valley By. Co.
v. Adam. 420
1890, Ch. 255. See par. 6, this title.
1890, Ch. 565. See par. 5, this title.
7. 1890, Ch. 566 — Transportation Corporations Law — Water Company
Incorporated lor the Purpose of Supplying Water to Towns and Villages
Adjacent to a City — When It May Lay Its Water Mains and Pipes
through the City — When Entitled to Injunction Restraining the City
from Preventing the Laying of Water Pipes Where a water works com-
pany, duly incorporated under the provisions of the Transportation Cor-
porations Act (L. 1890, ch. 566, as amd. by L. 1892, ch. 617), for the
purpose of supplying water to certain villages and towns lying upon
opposite sides of a city, has paid the organization charges imposed by the
statute and has located and procured a right of way through the towns
lying on the westerly side of the city, as required by the statute, and lias
obtained by a contract with a railroad company the right to lay its water
mains upon the railroad's right of way through the city and the town on
the easterly side of the city to villages upon the line of the railroad, and
lias also entered into a contract with another corporation to construct its
water plant and lay its water mains and pipes, and made agreements to
supply water to a number of manufacturing establishments in the towns,
outside of the city, and to supply the railroad company with the water
that it requires in the city and at its stations along the route of the
water company, the franchise rights of the water company have become
vested thereby, and the company has the right and power, under section
82 of the statute, to lay its water mains along the route which it has
adopted and located upon the railroad's right of way through the city,
without the consent or permission of the authorities of the city, and is
entitled to an injunction restraining the city, its officers, agents and serv-
ants, from interfering with or preventing it from laying its water pipes or
mains across the streets of the city intersected by the railroad's right of
way. Rochester db L. 0. Water Co. v. City of Rochester. 36
8. Idem — When Ordinances Adopted under Provisions of the Charter of
the City, Have no Application to the Laying of Water Mains through the City
— When Superintendent of Water Works of City Mty Not Interfere With
Water Pipes and Mains Passing through the City — Effect of Statutes Enacted
after Water Company's Rights Have Been Acquired. Ordinances adopted by
the common council of a city, after the passage of the Transportation Cor-
porations Law, for the purpose of regulating the opening of street surfaces
for the laying of gas and water pipes and the making of sewer connec-
tions, although authorized by the charter of the city, nave no application
to and cannot regulate or prohibit the laying of water mains through the
city by a water company organized under the statute in question for the
purpose of supplying water to adjacent towns and villages, since the
legislature could not have intended to vest in the common council
the right to repeal or amend, by ordinance, a general statute of the state;
neither do the provisions of the charter of cities of the second class (L.
1898, ch. 182) under which, in connection with special statutes not inconsist-
ent therewith, the city, in this case, is now acting and by which the commis-
sioner of public works is empowered to appoint a superintendent of water
works to see that the city is supplied with wholesome water for public and
private use, give such superintendent any power to prohibit the laying of
water pipes under the general laws or control the water of a corporation
organized under the Transportation Corporations Law so long as it is only
passing through the city in the mains of the company for use elsewhere;
nor can the vested rights acquired by the company in pursuance of its
INDEX. 659
SESSION LAWS — Continued.
corporate purposes be affected by subsequent statutes enacted for the pur-
pose of preventing the company from laying its pipes within the territory
of the city. Id.
1892, Ch. 358. See par. 6, this title.
1892, Ch. 617. See par. 7, this title.
9. 1892, Ch. 686-- » County Law — Power of Town Officers of Town of
Hyde Park Not Restricted or Affected by Section 77 of the County Law,
Relating to the Alteration of State Roads. The power of the town, board
and highway commissioners of the town of Hyde Park to authorize an
alteration and improvement in the New York and Albany post road is not
restricted or made dependent upon the consent of the board of super-
visors of Dutchess county by the provisions of section 77 of the County
Law (L. 1892, ch. 686), providing that the board of supervisors of any
county may authorize the commissioners of highways of any town in
their county to alter or discontinue any road or highway therein, which
shall have been laid out by the state, since it is apparent, from an exam-
ination of the Colonial Laws (Col. Laws, 1703, ch. 131; 1772, ch. 1536),
and the statutes of the state (L. 1779, ch. 31; L. 1797, ch. 43; L. 1813, ch.
83), relating to the laying out, construction and maintenance of the New
York and Albany post road and other public highways established
Erior to 1813, that under the colonial laws as early as 1772, especially in
►utchess county, where the alteration in question was made, commission-
ers of highways were empowered to alter highways that were deemed
inconvenient, and that this power was continued by the state legislature in
1779 and by general laws in 1797 and 1813, and that the same power has
been continned until the present day; it follows, therefore, that at the
time of the passage of the County Law and of chapter 317 of the Laws
of 1882, and even of chapter 88 of the Laws of 1817, the substance of
which statutes is contained in section 77 of the County Law, the commis-
sioners of highways of towns had been given jurisdiction over the existing
colonial highways, with the power to make such needed alterations therein
as should be deemed necessary, and that power has not been taken from
them by the County Law. People ex rel. Dinsinore v. Vandewater. 500
1892, Ch. 690. See par. 23, this title.
10. 1893, Ch. 189— Condemnation of Rights of Owners of Waters of
Inland Pond and Rights of Owners of Land Surrounding the Pond and
under Waters of tfie Same in Proceeding by City of New York — When
Owner of Bed of Pond Entitled to Substantial Damages Therefor. Where
the city of New York, in a condemnation proceeding instituted
under the statute (L. 1893. ch. 189), providing for the protection of the
sources of its water supply, has acquired the right of the grantee named
in certain deeds to maintain a dam across Byram river and use the waters
collected and stored therein, and has also acquired from the successor in
title of the grantor named in such deeds the title to the lands surrounding
Byram pond, for which the commissioners of appraisal awarded sub-
stantial damages, but awarded only nominal damages for the bed of the
pond, he is entitled to a new appraisal awarding him substantial compen-
sation for his right to use the pond in connection with the upland for
domestic purposes, the harvesting of ice, etc., and also for his right to
repurchase his interest in the lands surrounding the pond as provided for
in the deeds, since such rights are real, entitling him to substantial dam-
ages upon their being taken from him, pursuant to the provisions of the
act under which the condemnation proceedings were instituted. Mattel'
ofBrookfield. 188
1893, Ch. 725. See par. 23, this title.
1894, Ch. 172. See par. 4, this title.
660 INDEX
SESSION LAWS— Continued.
11. 1895, Ch. 547 — Real Property Laid — Champerty— When Purchase-
Money Mortgage Not 0 hampertous. Judicial sales are not within the con-
demnation of the Statute of Champerty (1 R S. 739, §§ 147, 148; Heal
Property Law, 1895, ch. 547, § 225); a purchaser of land sold under a
decree in a foreclosure action acquires a perfect title, although at the
time the premises are in the actual possession of one claiming title thereto
under a tax deed; a mortgage executed by him on the same day to the
plaintiff to secure a part of the purchase price is not void under the
statute since the deed and the mortgage take effect at the same instant,
constituting but one act, and the mortgagee, to the extent of his mort-
gaged interest, whether it be considered a lien or a conditional estate,
must be regarded as much a purchaser at the Judicial sale ns the mort-
gagor, and acquires the title not from him but through him as a mere
conduit; the assignee of such purchase-money mortgage who forecloses it
and bids in the premises acquires the title thereto and may maintain an
action of ejectment for their recovery. Be Garmo v. Phelps. 455
See, also, par. 15, this title.
12. 1895, Ch. 789 — New York City— Power of New East River Bridge
Commissioners — Provisions in Specifications Limiting Competition Neither
111 gal n/rr Fraudulent. General allegations in a taxpayer's action to annul
a contract made by the commissioners of the New East River bridge in
the city of Now York for the construction of the bridge, that the commis-
sioners fraudulently prescribed in their notices and specifications that pro-
posals would be received from those bidders only who possessed plants
requisite to do the work and whose plants had been in successful opera-
tion for at least one year, and that there would be excluded steel contain-
ing more than a specified percentage of foreign elements "with the
purpose and intent of limiting competition and confining the same to a
small class of bidders," and also charging that the cost of the work was
increased thereby, in the absence of any allegations of fact except the
statement that their action was taken with the purpose and intent of lim-
iting the class of bidders, are insufficient to support the charge of fraud,
since under the act directing the construction of the bridge (L. 1895, ch.
789, § 8) the power of the commissioners, which was not limited or quali-
fied by subsequent charter provisions, was plenary and they were not
limited to the performance of the work by contract or by competition,
and, therefore, their intent to limit competition, both in the class of con-
struction or as to character of material, was in itself neither illegal nor
fraudulent. Knt/wles v. City of New York. 480
13. 1896, Ch. 423— Highways — New York and Albany Post Road-
Power of Town Officers of Town of Hyde Park to Alter and Improve Same.
The town bonrd and commissioners of highways of the town of Hyde
Park, Dutchess county, having had, under colonial laws and statutes of
the state prior to the enactment of chapter 423 of the Laws of 1896, the
power to alter and improve the New York and Albany post road, running
through that town, such power is not restricted or taken away by the
latter act, since there is nothing in the provisions thereof that in any
manner limits their jurisdiction or powers over that highway, except in
one particular, that they are prohibited thereby from authorizing or licens-
ing the laying of any railroad track upon the highway, except to cross
the same; they have, therefore, the power, upon the petition of a tax-
payer of the town, to authorize an alteration and improvement of a part
of said road, lying within the town and within the premises of the peti-
tioner, such improvement to be made by petitioner and at his expense,
and upon the satisfactory completion thereof, to accept the road as
changed and improved. People ex rel. Di minor e v. Vandewatei\ 500
14. 1896, Ch. 546 — State Chanties Law — Jurisdiction of New York
City Magistrate to Sentence Women to State Reformatory at Bedford
INDEX. 661
SESSION LAWS— Continued.
under Section 146 Thereof — Conviction Must Be for Offenses Enu»
merated Therein. Under section 146 of- the State Charities Law (L.
1896, ch. 546, as amd. by L. 1899, ch. 632), providing that " A female
between the ages of fifteen and thirty years, convicted by any mag-
istrate of petit larceny, habitual drunken u ess, of being a common pros-
titute, of frequenting disorderly houses or houses of prostitution, or of
a misdemeanor, and who is not insane, nor mentally or physically inca-
pable of being substantially benefited by the discipline of either of such
institutions, may be sentenced and committed to * * * the New York
State Reformatory for Women at Bedford," a magistrate of the city of
New York has no jurisdiction to sentence a woman to such reformatory
Unless she is convicted of one or more of the offenses enumerated therein;
and a conviction thereunder is improper where it is impossible to deter-
mine, from the records and papers relating to the conviction and sentence
returned upou writs of habeas corpus and certiorari allowed in her
behalf, whether she was convicted of being a prostitute, either •'public"
or "common," assuming these terms to be practically synonymous, or
on the charge of "disorderly conduct;" but assuming that it is reason-
Ably certain that the magistrate intended to convict the relator of " dis-
orderly conduct/' then the conviction is not a valid conviction for a mis-
demeanor, and, therefore, within the purview of the State Charities Law,
unless the offense complained of constitutes a misdemeanor as defined by
law; and where the record fails to show that the disorderly conduct com-
plained of comes within the meaning of section 1458 of the Consolidation
Act, which seems to have b ?en incorporated into the Greater New York
charter, or that of section 675 of the Penal Code, relating to the offense of
disorderly conduct, so that it constitutes the offense of "disorderly con-
duct," as therein defined, and, therefore, is a misdemeanor, the relator is
properly discharged from custody. People ex rel. Clark v. Keeper, etc.
465
15. 1896. Ch. 547— Will— When Void Intermediate Trust, Created by
Codicil, May Be Expunged Witlwut Changing Testator's Plan for Dis-
position of His Property, the Will Must Be Sustained. Where a testa-
tor devised and bequeathed his residuary estate to his executors in trust
to pay the income thereof to his wife during her lifetime, with power to
sell his real estate at any time during the trust at their discretion, and
after her death to transfer the residuary estate to the designated trustees
of a permanent trust, and thereafter, after the death of his wife, testator
executed a codicil to his will, revoking the provisions therein contained
for the benefit of his wife, and directing his executors to hold the residuary
estate and invest and reinvest the income thereof until the expiration of
two years after his death and then to transfer the residuary estate and the
accumulated income thereof to the trustees of the permanent trust,
neither the will and the provisions thereof granting the power of sale, nor
the provisions creating the permanent trust, are revoked or rendered
invalid by the codicil, notwithstanding the direction to hold and invest
both principal and income of the residuary estate for the deflrite period
of two years after testator's death before transferring the same to the per-
manent trustees constituted an unlawful suspension of the power of
alienation and provided for the unlawful accumulation of income in vio-
lation of the statute (Real Property Law? §§ 32 and 51; L. 1896, ch. 547),
since the invalid provisions of the codicil affected neither the power of
sale nor the existence of the permanent trust, but only the time of the
inception of the trust, and such provisions can be expunged without mak-
ing any change in the testator's plan for the disposition of his residuary
estate, except that the trustees of the permanent trust take possession
thereof upon the testator's death instead of two years later. Smith v.
Ghescbrough. 817
16. 1896, Ch. 769 — Appraisal of Property of Water Works Com-
pany Made by Commissioners in Condemnation Proceedings — Illegal
662 INDEX.
SESSION LAW3— Continued.
and Erroneous When Based upon Invalid Contract of Purcliase. Where
the board of water commissioners of the village of White Plains,
appointed by the statute (L. 1896, ch. 769), with power to supply the vil-
lage with water and to acquire by purchase or condemnation all water,
water rights and property necessary therefor, whether owned by indi-
viduals or water companies, instituted condemnation proceedings pursuant
to such statute to acquire the property of a water works company then
supplying the village with water under the contract of July 1, 1886, and
the commissioners appointed in such proceeding instead of appraising
such property, including the good will and franchise of the company, at
its full value, as provided by the statute, refused to be governed thereby
and determined the value of the real property and plant of the company
in the manner provided for by the contract of July 1, 1886, without any
award for the franchise rights of the company, such determination ami
award are illegal and erroneous and must be set aside and a new appraisal
ordered before new commissioners to be appointed by the court. Matter
ofBd. of Water Comrs. of While Plains. 239
17. 1896, Ch. 908— Tax Law — Evidence — Competency of Tax Deed.
Under section 132 of the Tax Law (L. 1896, ch. 908) a tax deed executed
by a county treasurer which has for two years been recorded in the office
of the clerk of the county in which the lands conveyed thereby are located,
is admissible in evidence without proof of the regularity of the proceedings
upon which it is based. Boer v. McCullovgh. 97
18. Idem — Section 132 of the Tax Law Relating to Effect of Former
Deeds Not Applicable. Section 132 of the Tax Law (L. 1896, ch. 908) pro-
viding that a comptroller's deed which has been recorded for two years
shall be conclusive evidence that a sale and proceedings prior thereto
were regular and that conveyances shall be subject to cancellation, (1) by
reason of the payment of such taxes; (2) by reason of the levying of
such taxes by a town or ward having no legal right to assess the land
on which they are laid; (3) by reason of any defect affecting the juris-
diction upon constitutional grounds, if application is made to the comp-
troller or au action is brought, in the case of all sales made prior to 1895,
within one year from the passage of the act, is not applicable to such a
case whether treated as a statute of limitation or as a curative act, and.
therefore, the fact that the owner failed to apply for a cancellation or to
bring an action within the prescribed time, does not preclude him from
thereafter asserting his title in an action for a pariition of the property.
WaUace v. McEchron. 424
19. Idem — Section 220 — Imposing Transfer Tax upon the Exercise of a
Power of Appointment, Constitutional. Subdivision 5 of section 220 of the
Tax Law (L. 1896, ch. 908, amd. L. 1897, ch. 284), imposing a tax upon
the transfer of any property, real or personal, not only by will or intes-
tate law, but also " whenever any person or corporation shall exercise a
power of appointment derived from any disposition of property made
either before or after the passage of this act, such appointment when
made shall be deemed a transfer taxable under the provisions of this
act in the same manner as though the property to which such appoint-
ment relates belonged absolutely to the donee of such power, ana had
been bequeathed or devised by such donee by will, * * *" is an exer-
cise of legislative power not prohibited by the State or Federal Consti-
tution. A transfer tax is, therefore, properly imposed upon the exercise,
by a last will and testament, of a power of appointment derived from a
deed executed before the passage of any statute imposing a tax upon the
right of succession to the property of a decedent. Matter of Delano. 486
20. Idem — Construction of Statute. The statute applies to all powers of
appointment alike, without distinction on account of the method of crea-
tion or date of creation. No tax is laid upon the powers, or on the prop-
INDEX. 663
SESSION LAWS — Continued.
erty or on the original disposition by deed, but simply upon the exercise
of the power by will as an effective transfer for the purposes of the act;
and since the legislature has full and complete control of the making, the
form and the substance of wills, it can impose a charge or tax for doing
anything by will. The fact that there was no statute imposing a suc-
cession tax when the power was created is immaterial. That transfer is
not taxed; it is the practical transfer through the exercise of the power
by will that is taxed, and nothing else. Id.
See, also, par. 23, this title.
1897, Ch. 5584. See pars. 19 and 20, this title.
1897, Ch. 414. See par. 4, this title.
1898, Ch. 182. See par. 8, this title.
21. 1898, Ch. 199 — Little Fall* Charter— Validity of Provisions Pro-
hibvtinn Maintenance of Actions to Set Aside or Annul Assessments for Local
Improvements Unless Commenced within Prescribed Time and in Compliance
with Pi escribed Conditions. The legislature having power to absolutely
prohibit an action to set aside, cancel or annul any assessment made for a
local improvement, such power necessarily includes the power to prohibit
the commencement of such an action unless specified conditions are com-
plied with ; it, therefore, had the power to enact the provisions of the charter
of the city of Little Falls (L. 1898, ch. 199, § 83, as amd. by L. 1899, ch. 289),
providing that no such action shall be maintained by any person unless
" commenced within thirty days after the delivery of the assessment roll
and warrant for such local improvement to the city treasurer and notice
by him in the official newspapers of the city of the receipt thereof, and
unless within said thirty days an injunction shall have been procured by
such person from a court of competent jurisdiction restraining the com-
mon council from issuing the assessment bonds hereinafter provided to be
issued for such assessment," and such provision is valid and is a bar to
any action not commenced within the time, and in compliance with the
conditions, therein prescribed. Loomis v. City of Little Falls. 31
1899, Ch. 289. See par. 21, this title.
22. 1899, Ch. 870— Civil Service Law — New York (City of ) — Deputy
Tax Commissioner — Office of Excepted from Provisions of Section 21 of
Civil Service Law Prohibiting Removal of Honorably Discharged Volunteer
Firemen Therefrom, Except After Hearing on Stated Charges. The office
of deputy tax commissioner of the city of New York is an office excepted,
by the language thereof, from the provisions of the Civil Service Law
(L. 1899, ch. 870, § 21, as amd. by L. 1902, ch. 270) prohibiting the
removal of an honorably discharged soldier or volunteer fireman from any
position, by appointment or employment, in the state or any of the cities
thereof, except for incompetency or misconduct after a Bearing upon
stated charges, and, therefore, an honorably discharged volunteer fire-
man who has been removed by the board of tax commissioners without a
trial, having been first given an opportunity of making an explanation,
under the provisions of section 1543 of the charter, is not entitled to a
hearing upon stated charges, and a writ of certiorari to review his removal
will not lie. People ex rel. Ryan v. Wells. 462
1899, Ch. 632. See par. 14, this title.
1900, Ch. 374. See par. 24, this title.
23. 1901, Ch. 118 — Tax Law — Foreign Insurance Corporation — Fran-
cliise Tax upon Fire and Marine Insurance Corporation. A foreign marine
insurance company doing business in this state must pay the annual tax
of five-tenths of one per centum on the gross amount of premiums
received for business done within this state during each calendar year,
imposed by chapter 118 of the Laws of 1901, amending section 187 of the
664 INDEX.
SESSION LAWS— Continued,
Tax Law (L. 1896, ch. 908, § 187), " in addition to all other fees, licenses
or taxes imposed by this or any other law/' and is no longer entitled to
have deducted therefrom all other taxes paid by the company, under
the provisions of the Insurance Law (L. 1892, ch. 690, as amd. by L.
1893, ch. 725), providing that the superintendent of insurance in collecting
the tax of two per centum thereby imposed upon the amount of all pre*
mi urns upon insurance against marine risks received by any foreign
insurance company during the preceding calendar year, shall deduct there-
from all other taxes paid by such corporation under the laws of this,
state; since it is apparent from the former statute that it was the purpose
of the legislature to increase the franchise tax imposed upon foreign
insure nee corporations to one per centum per annum/ which it did, m
the case of all of such corporations except fire and marine insurance
corporations, by increasing the tax from five-tenths of one per centum to
one per centum, but in the case of the latter corporations it effected this
purpose by providing that the tax of five-tenths of one per centum per
annum imposed upon such cprporations should be in addition to the taxes
authorized by other statutes, and, therefore, the provision of the Insur-
ance Law providing for a deduction of such tax must be deemed to have
been repealed by implication by the statute in question. People v. Thame*
<fe Mersey M. Ins. Co. 531
1901, Ch. 191. See par. 24, this title.
24. 1901, Ch. 891 — Nassau (County of )— Invalidity of Resolution of
Board of Supervisors of Nassau County, Passed April 9, 1901, Provid-
ing That Biennial Town Meetings in Said County in the Year 1903
and Thereafter Should Be Held an the First Tuesday After the First
Monday in November. A resolution, passed by the board of super-
visors of Nassau county on April 9, 1901, seven days after the elec-
tion of such board for the term of two years from the date of such election,
providing that the biennial town meetings in said county in the year 190$
and thereafter should be held on the first Tuesday after the first Monday
in November, is not supported by the statute (L. 1901, ch. 891), by which
such resolution was claimed to be authorized, since the statute did not
become a law until April 17, 1901, eight days after the passage of the
resolution, and was not intended to be retroactive in its effect, its provisions
being in terms limited to town officers "hereafter elected," and to cases
where the resolution changing the town meetin'g is "thereafter" adopted;
neither is such resolution authorized by chapter 874 of the Laws of 1900,
nor by chapter 191 of the Laws of 1901, which are the only statutes, prior to
chapter 891 of the Laws of 1901, authorizing boards of supervisors to
provide for the holding of town meetings at the time of general elections
in the fall, since the resolution in question attempted to extend the term
of the town officers then in office beyond the period of two years, the
term fixed for such ofilcers by chapter 191 of the Laws of 1901, and hence
the resolution was not only without statutory authority in its support,
but was in violation of it, and, therefore, in violation of section 26 of article
III of the Constitution, which provides that members of boards of super-
visors shall be " elected in such manner and for such period as is or may
be provided by law." People ex rel. Smith v. Weeks. 194
25. 1901, Ch. 466 — New York City Charter— Board of Education, Not
the City, the Proper Party Defendant in Suits Relating to School Funds.
Under the provisions of the charter of the city of New York (L. 1901.
ch. 466) the only relation that the city has to the subject of public educa-
tion is as the custodian and depositary of school funds, and its only duty
with respect to that fund is to keep it safely and disburse the same accord-
ing to the instructions of the board of education. The city, as trustee,
has the title to the money, but it is under the care, control and adminis-
tration of the board of education, and all suits in relation to it must be
INDEX. 665
SESSION LAWS— Continued.
brought in the name of the board. A suit to recover teachers' wages is a
suit affecting or in relation to the school funds, and under the express
words of the statute must be brought against the board. Gunnison v.
Board of Education. 11
26. Idem — Board of Education an Independent Corporation, Not a City
Agency. The mere fact that the legislature has made the board of educa-
tion a member of one of the administrative departments of the city of
New York does not indicate an intent to devolve upon the city itself,
acting through one of its departments, the state functions which were
formerly directly imposed upon the board as a separate public corpora-
tion ana to relegate it to an agency similar to that occupied by the police,
fire, health and other city departments, of which the city is the responsible
head; nor does the fact that the charter (§ 1055) expressly authorizes
the board to bring suits affecting school property exclude the idea that it
may also defend them and prevent it from becoming a party defendant in
Buch cases; nor does section 1614, requiring future suits against the city
to be in the corporate name of the city of New York, have any applica-
tion, since such suits are not against the city but are against another, and
independent corporation, namely, the board, of education.
The fact that the charter enumerates among; the administrative depart-
ments of the city the board of education, calling it the " Department of
Education," of which the board Is the head, does not make any change in
the corporate powers, duties or liabilities of the board and, therefore, does
not affect its legal capacity to sue and be sued.
Nor does the fact that the board is the head of the department exempt
it from such suits because it U not a mere agent of the city but is an
independent corporate body whose acts are not the acts of the city and for
which the city is not responsible. Id.
See, also, pars. 14 and 22, this title.
1902, Ch. 270. See par. 22, this title.
SHIPPING.
Collision at sea.
See Negligence, 3.
STOCKHOLDERS.
Action for damages resulting from conspiracy to wreck corporation
must be brought by corporation not by an individual stockholder — pro-
tection of interests of minority stockholders.
See Corporations.
STBEETS.
1. Change of Grade — Proceedings for Damages Caused Tlxereby — Con-
struction of Statutes Relating Thereto. The statute (L. 1883, ch. 113, as
amd. by L. 1884, ch. 281, and L. 1894, ch. 172) providing that "whenever
the grade of any street * * * in any incorporated village shall be
changed so as to injure or damage the buildings or real property adjoin-
ing such highway, the owners thereof may apply to the Supreme Court
for the appointment of three commissioners to ascertain and determine
their damages, which damages shall be a charge upon the village * * *
chargeable with the maintenance of the street * * * so altered or
changed/' was not superseded or repealed by the provisions of the Village
Law (L. 1897, ch. 414, § 159, and § 842, subd. 4), providing for the
assessment and payment of damages when the grade of a street shall be
changed by the authorities of a village having the exclusive control and
Jurisdiction of the street, except in so far as the provisions of the former
statute might apply to a change of the grade of a street, within the
exclusive control and jurisdiction of a village, when made by the legally
constituted authorities thereof. Matter of ItorgeY. VU. of Salamanca. 324
666 INDEX.
STREETS— Continued.
2. Same — Wlien Proceeding for Damages Caused by Change of Grade in
Street May Be Instituted and Maintained under Chapter 113 of Laws of
1883 — Parties to Such Proceeding. Where a railroad crossing over a
village street was changed from a ^rade to an undergrade crossing by the
railway company and the authorities of the village, pursuant to an order
of the board of railroad commissioners, acting under the provisions of the
Railroad Law relating to the change of railroad crossings at grade, in
furtherance of public safety (L. 1890, ch. 565, §§ 62-69). whereby an
alteration of the grade of the street in front of property abutting thereon
was rendered necessary, the owner of the property may institute and
maintain a proceeding for the damages caused by such alteration under
chapter 118, Laws of 1883, since all that is necessary to bring the case
within this statute is that the grade shall be legally changed or altered;
but, as the damages for which recovery is sought were caused by an
improvement toward the expense of which the railroad company is
required to contribute its ratable proportion, the company is entitled to be
made a party to the proceeding, and to be heard therein, as provided by
the Railroad Law. la.
Excavations in — degree of care.
See Negligence, 1, 2.
Private use of public streets — when reconstruction of vault underside-
walk may be made without permit.
See New York (City of), 8-12.
Title of city to lands in public streets held in trust — power of legisla-
ture to prescribe that submerged land should be used for streets.
See Title, 2, 4.
SUBROGATION.
1. Rights of Surety Which Has Paid Judgment Recovered in Tort Against
Several Joint Tort Jbeasors and Has Been Subrogated to Rights of the Judg-
ment Creditor Thereunder. Where a surety company, having paid an
indebtedness arising upon a judgment recovered in tort against several
defendants, for one of whom it was surety upon an appeal from the judg-
ment, ha9 been subrogated, by an order of the court, to all of the rights
and securities of the judgment creditor under the judgment, including
those arising from a contract by which one of the Judgment debtors agreed
to pay a certain sum, either before, or upon, the final determination of the
action, upon the payment of which the debtor was to be released from
liability under the judgment, the surety company is entitled to collect the
sum agreed to be paid by such debtor and have execution therefor, since
the rule, that a judgment recovered in tort is extinguished by payment
and that no tort feasor who has satisfied such judgment can compel any of
his joint wrongdoers to contribute, is based upon the principle that a court
of equity will refuse to lend its aid to those who have been guilty of illegal
conduct, or who do not come before it with clean hands, and, hence,
such rule has no application to a surety company which, by a decree
of the court, has been subrogated to the rights and remedies of the
judgment creditor, and is, in effect, in the position of a purchaser of the
judgment. Kolb v. National Surety Co. 233
2. Contract By One of Sevei'al Joint Debtors under Judgment in Tort to
Pay Part Thereof in Consideration of His Release Therefrom — When Such
Joint Debtor Will Not Be Relieved from Contract Because of Similar Contract
Made with Other Joint Debtors. Where one of several judgment debtors,
against whom a judgment in tort had been recovered, contracted with the
judgment creditor, pending an appeal from the judgment, to pay a certain
part of the judgment, in any event, in consideration of bis release there-
from, such judgment debtor cannot be relieved from the agreement upon
the ground that a surety company, which had paid the judgment in full
INDEX. 667
SUBROGATION — Continued.
and had been subrogated to the rights of the judgment creditor there-
under, had thereafter released another of the judgment debtors in consid-
eration of the payment by him of his proportionate part of the judgment,
where there was in both of such agreements, a reservation of the right
to enforce the judgment against the other judgment debtors. Id.
3. When Judgment Debtor Not Entitled to Injunction Restraining Surety
from Enforcing His Agreement to Pay Part of the Joint Judgment. Where
the surety company, subrogated to the rights of the judgment creditor
under such judgment, has issued an execution against the judgment
debtor who agreed to pay a certain sum upon the judgment, in any
event, in consideration of his release therefrom, the latter cannot main-
tain an action in equity to restrain the enforcement by the surety
company of the judgment, through the execution, and to compel the
discharge of the judgment, since a court of equity will not listen to
one seeking to be relieved of his liability under a joint judgment in
tort, nor will it assist him, in violation of his express agreement to escape
the liability which he had contracted to pay and thereby recognized as
existing under the judgment against him. Id.
SURETIES.
Impairment of indemnitors' rights.
See Principal and Surety.
Bights of surety which has paid judgment recovered in tort against
several joint tort feasors and has been subrogated to rights of the judg-
ment creditor thereunder — when judgment debtor not entitled to injunc-
tion restraining surety from enforcing his agreement to pay part of the
joint judgment.
See Subrogation, 1-3.
TAX.
1. New York City — Effect of Assessment Made While Proceeding for Con-
demnation of Property by City Is Pending — Tax Not a Lien, When Title
Passed to City Before Confirmation of Assessment Boll. Where the report
of commissioners in condemnation proceedings instituted by the city of
New York to acquire certain real estate for municipal purposes, which
awarded a certain sum to the owner thereof "for land and improve-
ments," was confirmed by the court on December 28, 1897, and the title
to the property was taken thereunder by the city on July 6, 1897, the
owner is not liable for the taxes levied on the property under an assess-
ment roll in which the property was listed and valued as of the second
Monday of January, 1897, where the assessment roll was not acted upon
and confirmed by the municipal authorities until August 24, 1897, one
month and sixteen days after the title had passed from the owner to the
city; the tax never became a lien upon the land, since when the assess-
ment valuation was made condemnation proceedings were in progress,
and by due course of procedure the city became the owner of the prop-
erty more than six weeks before the assessment was completed, and a
tax, whether imposed upon property or upon the person of the owner on
account of his ownership of the property, cannot be enforced if, before
the tax becomes a lien, the city suspends its power of taxation by taking
the property away from the owner through the power of eminent domain.
Buckhout v. City of New York. 368
2. When State Tax Deed Void for Failure of Comptroller to Give State-
ment of Unpaid Taxes on Land When Requested by Owner. Where the
default of a taxpayer was caused by the failure of the state comptroller
or his clerks to render a proper statement of the unpaid taxes, a subse-
quent deed executed by the comptroller in 1886 and recorded in 1887 in
pursuance of a tax sale made in 1871 for the unpaid taxes omitted from
the statement cannot divest the owner of his title. Wallace v. McEchron,
424
668 INDEX.
TAX — Continued.
3. Section 182 of tlu Tax Lava Relating to Effect of Former Deeds Not
AxrplicabU, Section 182 of the Tax Law (L. 1896, ch. 908), providing that
a comptroller's deed which has been recorded for two years shall be con-
clusive evidence that the sale and proceedings prior thereto were regular
and that conveyances shall be subject to cancellation, (1) by reason of the
payment of such taxes; (2) by reason of the levying of such taxes by a
town or ward having no legal right to assess the land on which they are
laid; (3) by reason of any defect affecting the jurisdiction upon constitu-
tional grounds, if application is made to the comptroller or an action is
brought, in the case of all sales made prior to 1895, within one year from
the passage of the act, is not applicable to such a case whether treated as
a statute of limitation or as a curative act, and, therefore, the fact that
the owner failed to apply for a cancellation or to bring an action within
the prescribed time, does not preclude him from thereafter asserting his
title in an action for a partition of the property. Id.
4. Section 220 of Tax Law, Imposing Transfer Tax upon the Exercise of
a Power of Appointment, Constitutional, Subdivision 5 of section 220 of
the Tax Law (L. 1896, ch. 908, amd. L. 1897, ch. 284), imposing a tax
upon the transfer of any property, real or personal, not only by will or
intestate law, but also " whenever any person or corporation shall exercise
a power of appointment derived from any disposition of property made
either before or after the passage of this act, such appointment when
made shall be deemed a transfer taxable under the provisions of this act
in the same manner as though the property to which such appointment
relates belonged absolutely to the donee of such power, ana had been
bequeathed or devised by such donee by will, * * * " is an exercise of
legislative power not prohibited by the State or Federal Constitution. A
transfer tax is, therefore, properly imposed upon the exercise, by a last
will and testament, of a power of appointment derived from a deed
executed before the passage of any statute imposing a tax upon the right
of succession to the property of a decedent. Matter of Delano. 486
5. Construction of Statute. The statute applies to all powers of appoi nt
ment alike, without distinction on account of the method of creation or
date of creation. No tax is laid upon the powers, or on the property or
on the original disposition by deed, but simply upon the exercise of the
power by will as an effective transfer for the purposes of the act; and
since the legislature has full and complete control of the making, the form
and the substance of wills, it can impose a charge or tax for doing any-
thing by will. The fact that there was no statute imposing a succession
tax when the power was created is immaterial. That transfer is not
taxed; it is the practical transfer through the exercise of the power by
will that is taxed, and nothing else. Id.
6. Foreign Insurance Corporation — Franchise Tax upon Fire and
Marine Insurance Corporation — Effect of Chapter 118 of Laws of 1901.
A foreign marine insurance company doing business in this state must
pay the annual tax of five-tenths of one per centum on the gross amount
of premiums received for business done within this state during each
calendar year, imposed by chapter 118 of the Laws of 1901, amending sec-
tion 187 of the Tax Law (L. 1896, ch. 908, § 187), "in addition to all other
fees, licenses or taxes imposed by this or any other law," and Is no longer
entitled to have deducted therelrom all other taxes paid by the company,
under the provisions of the Insurance Law (L. 1892, ch. 690, as amd. by
L. 1898, ch. 725), providing that the superintendent of insurance, in col-
lecting the tax of two per centum thereby imposed upon the amount of
all premiums upon insurance against marine risks received by any foreign
insurance company during the preceding calendar year, shall deduct
therefrom all other taxes paid by such corporation under the laws of this
state; since it is apparent from the former statute that it was the purpose
of the legislature to increase the franchise tax imposed upon foreign
INDEX. 669
TAX— Continued.
insurance corporations to one per centum per annum, which it did, in the
case of all of such corporations, except fire and marine insurance cor-
porations, by increasing tho tax from five-tenths of one per centum to
one per centum, but in the case of the latter corporations it effected this
purpose by providing that the tax of five-tenths of one per centum per
annum imposed upon such corporations should be in addition to the taxes
authorized by other statutes, and, therefore, the provision of the Insur-
ance Law providing for a deduction of such tax must be deemed to have
been repealed by implication by the statute in question. People v.
Thames <& Mersey M. ins. Co. 531
Admissibility of tax deed in evidence.
See Evidence, 1.
TAXPAYER'S ACTION.
When allegations insufficient to support charge of fraud.
See New York (City of), 6.
TELEPHONE COMPANIES.
Grant of right to construct lines obtained by fraud — ejectment, when
maintainable. y
See Ejectment, 1, 2.
TITLE.
1. New York City — Title to Lands under Water. The title of the
city of New York in the tideway and the submerged lauds of the Hudson
river granted under the Dongan and Montgomerie charters and acts of the
legislature (L. 1807, ch. 115; L. 1826, ch. 58; L. 1837, ch. 182) was not
absolute and unqualified, but was and is held subject to the right of the
public to the use of the river as a water highwav. Knickerbocker Ice Co.
v. Forty-second St. & G. St. F. B. B. Co. % 408
2. Title to Lands in the Public Streets Held in Trust. The title of the
city of New York in and to the lands within its public streets is held in
trust for the public use. Id.
8. Hights of General Public over Places Where Land Highways and Navi-
gable Waters Meet. The general public has a right of passage over tho
places where land highways and navigable waters meet; and when a wharf
or bulkhead is built at the end of a land highway rnd into the adjacent
water, the highway is by operation of law extended by the length of the
added structure. Id.
4. Power of Legislature to Prescribe that Submerged Land Should be Used
for & reels. The legislature had the power in granting additional sub-
merged lands to the city of New York (L. 1837, ch. 182) to prescribe that
such lands should be used for the purpose of an exterior street to which
other streets then intersecting the river should be extended. Id.
5. Conveyance by the City of New York of Pier in Forty -third Street Not
a Conveyance in Fee of Lai, d Covered by the Pier — Effect of Covenants Con-
tained in Prior Deeds of Adjoining Land under Water to frame Grantee —
Action Predicated upon Title in Fee Not Maintainable. A conveyance by the
city of New York in 1852 of a pier situated in Forty-third street in the
Hudson river, which street was laid out under the act of 1807 to high-
water mark, and by the act of 1837 was extended to the exterior
line of the city, containing the following description: " Beginning at
the point formed by the intersection of the northerly side of 43rd street
with the e^terly line or side of 12th Avenue; running thence southerly
along the easterly side of 12th Avenue to the northerly side of said pier;
thence westerly 211 feet three inches; thence southerly 40 feet five inches;
thence easterly 212 feet two inches, to the easterly side of 12th Avenue,
and thence southerly to a point where tho southerly side of 43rd street
670 INDEX.
TITLE — Continued.
intersects the said 12th Avenue. Together with the extent of the present
width of the street with the right of wharfage thereon, and together with
all and singular the tenements, hereditaments," etc., subject, however, to
the right of the city to order the pier extended into the river at the
expense of Lindsley, or to extend the pier at the city's expense, or to
grant the right to do so to other parties if Lindsley should fail to make
such extension when directed so to do, " in which case the right to wharf-
age, etc., at the portion of the pier extended shall belong to the parties at
whose expense the extension shall bo made," conveys, not the absolute
fee to the land covered by the pier, but the incorporeal hereditament
attached to the fee, i. e. , the right to maintain a pier and to collect wharfage
at the foot of Forty-third street in the Hudson river, whenever that point
should be located by lawful authority, since the city held the land under
a public trust and could not convey it in contravention thereof , of which
fact the grantee was chargeable with constructive notice, especially where
by prior deeds to him of adjoining land under water, the city expressly
reserved so much thereof as formed parte of Twelfth and Thirteenth ave-
nues and Forty-third street, and he covenanted therein that at the request
of the city he would construct bulkheads and that the streets should
always remain public streets, and, therefore, he had actual knowledge of the
limitations upon his title. Whatever, therefore, may be the rights acquired
by his successors in title, they include no right to maintain an action
which can only be predicated upon a title in fee. Id.
Foreclosure sale — when not within condemnation of champerty
statute.
See Champerty.
When a deed of land bounded by and surrounding inland pond does not
convey the land under waters of the pond — when deed of land surround-
ing pond conveys easement or right to overflow such land with waters
collected and stored by dam, leaving title and benefits thereof in grantor
— effect of agreement by grantor to buy back easement if not used by
grantee.
See Riparian Rights, 1-3.
Where state tax deed void for failure of comptroller to give statement
of unpaid taxes on land when requested by owner.
See Tax, 2, 3.
TITLE INSURANCE.
What is insured by policy of — reformation of policy — when insurer
not liable for assessment levied on property after conveyance to insured,
but before date of issuance of policy.
See Insurance, 1-3.
TORTS.
Rights of surety which has paid judgment recovered in tort against
several joint tort feasors and has been subrogated to rights of the judg-
ment creditor thereunder — contract by one of several joiut debtors under
judgment in tort to pay part thereof in consideration of Lis release there-
from— when such joint debtor will not be relieved from contract because
of similar contract made with other joint debtors.
See Subrogation, 1-3.
TOWN&
Invalidity of Resolution of Board of Supervisors of Nasso u County, Passed
April 9, 1901, Providing that Biennial Town Meetinas in Said County in the
Year 1903 and Thereafter Should be Held on the First Tuesday After the
First Monday in November. A resolution passed by the board of super-
INDEX. 671
TOWNS— Continued.
visors of Nassau county on April 9, 1901, seven days after the election of
such board for the term of two years from the date of such election, pro-
viding that the biennial town meetings in said county in the year 1903
and thereafter should be held on the first Tuesday after the first Monday
in November, is not supported by the statute (L. 1901, ch. 891), by which
such resolution was claimed to be authorized, since the statute did not
become a law until April 17, 1901, eight days after the passage of the
resolution, and was not intended to be retroactive in its effect, its provisions
being in terms limited to town officers '* hereafter elected," and to cases
where the resolution changing the towu meeting is " thereafter" adopted;
neither is such resolution authorized by chapter 874 of the Laws of 1900,
nor by chapter 191 of the Laws of 1901, which are the only statutes, prior
to chapter 891 of the Laws of 1901, authorizing boards of supervisors to
provide for the holding of town meetings at the time of general elections
in the fall, since the resolution in question attempted to extend the term
of the town officers then in office beyond the period of two years, the
term fixed for such officers by chapter 191 of the Laws of 1901, and hence
the resolution was not only without statutory authority in its support,
but was in violation of it, and, therefore, in violation of section 26 of article
III of the Constitution, which provides that members of boards of super-
visors shall be "elected in such manner and for such period as is or may
be provided by law." People ex rel. Smith v. Weeks. 194
Return to certiorari to review determination of town board made by
majority of board conclusive.
See Certiorari.
Power of town officers to alter and improve state highway.
See Highways, 1, 2.
TRADE MARKS.
When Common English Words, or a Combination Thereof, Cannot Be
Adopted as Such. An exclusive proprietary right to the use of a common
English word, or a combination of such words, for the purpose of identi-
fying the class, grade, style or quality of a commercial article, or for any
purpose other than a reference to or indication of its ownership, cannot
be acquired by the prior adoption and use thereof upon the label of any
article, and the subsequent employment of such word or combination of
words by another to describe the character, quality and use of a similar
article does not constitute a trespass or infringement of a trade mark.
Barrett Chemical Co. v. Stern. 27
TRANSFER TAX.
Section 220 of Tax Law, imposing, upon the exercise of a power of
appointment, constitutional.
See Tax, 4, 5.
TRIAL.
1. Evidence. Where, upon the trial of an action for an accounting,
an alleged incorrectness or an inventory may have been a competent and
material fact, a question simply .calling upon the defendant to state
whether he had explained the mistakes therein to one of the plaintiffs is
properly excluded in the absence of some statement or admission on their
part that would be binding upon them. Adams v. Elwood. 106
2. Judicial Notice. An objection that a referee in an action for an
accounting was disqualified because at the time of his appointment he was
the county judge of a county having more than 120,000 inhabitants (Const,
art. 6, § 20), cannot be sustained by the Court of Appeals where the last
public record preceding his appointment shows the population to have
672 INDEX.
TOTAL — Continued.
been less than 120,000, although in fact it may have been more at the
time, since in such a case that court can take Judicial notice of nothing
but facts authenticated by the public records. Id.
3. Wlien Question Whether Judgment for Money May Be Recovered I*
Dependent ui)on Decision of Equitable Questions the Issue Is Not Triable by
Jury, as a Matter of Right, under Code Civ. Pro. 6 968. An action brought
by the executors of a decedent demanding judgment that a contract of
annuity between decedent and a life insurance company be adjudged
void and be canceled and set aside and that the plaintiffs recover from
defendant the amount paid by decedent for the annuity with interest
thereon less the amount of annuities paid with interest thereon, is an
action praying for the relief that only a court of equity can grant, and
the plaintiffs are not entitled to a trial by jury, as a matter of right, under
the p ovisions of section 968 of the Code of Civil Procedure. Dykman v.
U. 8. Life Ins. Co: 299
4. Direction cf Verdict, When Improper, The direction of a verdict in
any case, where the right of trial by jury exists, constitutes reversible
error if the evidence presents a question of fact. Sundheimer v. City of
JSTeto York. 495
5. Evidence Presenting Question of Fact. The evidence upon the trial of
an action to recover damages sustained to plaintiff's premises by flooding,
alleged to have been caused by defendant's negligence in the construc-
tion and maintenance of a sewer, examined and held to present a question
of fact which should have been submitted to the jury. Id.
When erroneous rulings upon, will not justify reversal — objection.
See Appeal, 1, 2.
Murder — sufficiency of evidence — competency of threats made by
defendant — incompetency of evidence of specific acts of violence of
deceased toward third person — charge.
See Crimes, 1-4.
Uxoricide — evidence of reputation for unchastity of defendant's alleged
paramour incompetent upon the question of motive — duty of trial court
as to a theory of the prosecution wholly unsupported by evidence.
See Crimes, 5, 6.
Murder — sufficiency of evidence — insanity — when court is justified
in refusing to appoint commission to examine defendant and report as to
his sanity — instruction as to presumption of sanity of defendant — trial
court not bound to charge request of counsel where substantially the
same proposition has already been charged.
See Crimes, 7-11.
Murder — sufficiency of evidence — absence of exceptions.
See Crimes, 12, 18.
Marder — sufficiency of evidence — admissibility of confession procured
by deception — credibility of witness thereto a question for the jury —
how competency of confession is to be determined — instruction to jury.
See Crimes, 14-17.
Indictment for policy gambling — admissibility of private papers
alleged to have been unlawfully obtained— when admission of private
papers not violative of constitutional guaranty against compelling pris-
oner to be a witness against himself — when evidence of nonexistence of
search warrant immaterial.
See Crimes, 18-28.
INDEX. 673
TRIAL — Continued.
Admissibility in evidence of tax deed.
See Evidence, 1.
Action to recover alleged agreed value of lost property — when evidence
of expert admissible to snow that such value was excesseive.
See Evidence, 2, 3.
Competency of facts showing hostility of witness — religious belief of
witness.
See Evidence, 4, 5.
Erroneous refusal to charge.
See Negligence, 8.
TRUSTS.
When void intermediate trust, created by codicil, may be expunged
without changing testator's plan for disposition of his property, the will
must be sustained.
See Will, 1.
Construction of clause, in will, appointing trustees residuary legatees —
residuary estate resulting f.om invalid trust passes to such residuary
legatees.
See Will, 2.
USER.
Private use of public streets — presumption arising from lapse of time
that user is with consent of public authorities may be dispelled by proof.
See New York (City op), 8-12.
VERDICT.
Direction of, when improper.
See Trial, 4.
VETERANS.
Office of deputy tax commissioner in New York city excepted from pro-
visions of Civil Service Law in relation to.
See Civil Service.
VILLAGES.
Change of grade in street — proceedings for damages caused thereby.
See Streets, 1, 2.
When contract, made by authorities of village, to purchase property of
water works company invalid.
See Water Works, 7, 8.
WAIVER.
Restriction of power of life insurance agents to waive conditions of
contract.
See Insurance, 4-6.
WARRANT.
Search — when evidence of non-existence of, immaterial.
See Crimes, 23.
WATER WORKS.
1. Water Company Incorporated under Transportation Corporations Law
(L. 1890, Ch. 566, as Amd. by L. 1892, Ch. 617) for the Purpose of Sup-
plying Water to Towns and Villages Adjacent to a City— When It May
43
674 INDEX.
WATER WORKS— Continued.
Lay Its Water Miins and Pipes through the City — When Entitled to
Injunction Restraining tfie City from Prevmting the Laying of Water Pipes.
Where a water works company, duly incorporated under the provisions of
the Transportation Corporations Act (L. 1890, ch. 566, asamd. by L. 1892,
ch. 617), for the purpose of supplying water to certain villages and towns
lying upon opposite sides of a city, has paid the organization charges
imposed by the statute and has located and procured a right of way through
the towns lying on the westerly side of the city, as required by the statute,
and has obtained by contract with a railroad company the right to lav its
water mains upon the railroad's right of way through the citv and the
town on the easterly side of the city to villages upon the line of the rail-
road, and has also entered into a contract with another corporation to con-
struct its water plant and lay its water mains and pipes, and made agree-
ments to supply water to a number of manufacturing establishments in the
towns, outside of the citv, and to supply the railroad company with the
water that it requires in the city and at its stations along the route of the
water company, the franchise rights of the water company have become
vested thereby, and the company has the right and power, under section
82 of the statute, to lay its water mains along the route which it has
adopted and located upon the railroad's right of way through the citv.
without the consent or permission of the authorities of the city, and is
entitled to an injunction restraining the city, its officers, agents and serv-
ants, from interfering with or preventing it from laying its water pipes or
mains across the streets of the city intersected by the railroad's right of
way. Rochester & L. 0. Water Co. v. City of Rochester. 36
2. When Ordinances Adopted under Provisions of the Charter of the City
Hate no Application to the Laying of Water Mains through the City — When
Superintendent of Water Works of City May Not Interfere with Water Pipes
and Mains Passing through the City — Effect of Statutes Enacted after
Water Company's Rights Have Been Acquired. Ordinances adopted by the
common council of a city, after the passage of the Transportation Corpo-
rations Law, for the purpose of regulating the opening of street surfaces
for the laying of gas and water pipes and the making of sewer connec-
tions, although authorized by the charter of the city, have no application
to and cannot regulate or prohibit the laying of water mains through the
city by a water company organized under the statute in question for the
purpose of supplying water to adjacent towns and villages, since the
legislature could not have intended to vest in the common council
the right to repeal or amend, by ordinance, a general statute of the state;
neither do t he #pro visions of the charter of cities of the second class (L.
1898, ch. 182) under which, in connection with special statutes not incon-
sistent therewith, the city, in this case, is now acting and by which the
commissioner of public works is empowered to appoint a superintendent
of water works to see that the city is supplied with wholesome water for
public and private use, give such superintendent any power to prohibit
the laying of water pipes under the general laws or control the water of &
corporation organized under the Transportation Corporations Law so long
as it is only passing through the city in the mains of the company for use
elsewhere; nor can the vested rights acquired by the company in pursu-
ance of its corporate purposes be affected by subsequent statutes enacted
for the purpose of preventing the company from laying its pipes within
the territory of the city. Id.
3. When Water Works Company Not Required to Qo Around City with
Its Water Mains and Pipes. Although the water company could have
located its line around the city by going a longer distance through a
town not named in its certificate of incorporation, it need not do so where
such town does not directly intervene between the towns to be supplied
with water and named in such certificate, or furnish the direct, natural
and feasible route between the same. Id.
INDEX. 675
WATER WORKS — Continual.
4. Possibility that Water Company May Become Competitor of City in
Supplying Water to Consumers Will Not Prevent Company from Laying
Water Mains and Pipes through the City, Notwithstanding the fact
that such water company may become a competitor of the city which
owns and operates a municipal water plant which supplies water to
its inhabitants for domestic and manufacturing purposes, and has for
many years supplied water to the railroad company upon whose right
of way the water company has located its route through the city aud
with which it has contracted to furnish water at a lower rate than that
at which the city has furnished it, such fact does not affect the statu-
tory right of the water company to run its mains through the city in
order to comply with the purposes of its grant; when the company
attempts to supply water to the inhabitants of the city within its terri-
torial limits, the power to do so may then be questioned ty the munici-
pality, and the courts may then be called upon to determine the extent of
its powers in that regard. Id.
5. When City May Not Attack Validity of Water Company's Right of
Way through the City upon lands of Railroad Company. Whether the
water company has obtained from the railroad company a valid right of
way along its lands is a question that cannot be raised by the city so
long as the railroad company does not question or oppose such right. /./.
6. Local A uiliorities Should Be Given Reasonable Control in Such Cases
as to the Streets to Be Used, and the Place and Manner in Which
the Pipes Should Be Laid. While the justice of the provision which
permits the laying of water pipes through nn adjoining municipality,
and thus preventing such municipality from depriving its neighbors
from receiving a supply of water, where such municipality happens
to intervene between the source of supply and the place of distribu-
tion, is fully recognized, it is suggested that the legislature might prop-
erly have placed some restriction upon the use of the streets in cities and
possibly in villages that should be made by water companies; that the
city or village authorities should be given some voice as to the streets
that should be used, and the place ana manner in which the pipes should
be laid therein; and that it should not be left entirely to the judgment
and discretion of the officers of the water company to place its pipes
wherever they please, without regard to the wishes or reasons of the offi-
cers of the city who may desire to have them placed elsewhere. Id.
7. White Plains (Village of) — In validity of Contract Made by Authorities
Thereof to Pureliase Property of Water Works Company — Agreement as to
Appraisal by Arbitrators. Where an agreement made by and between a
water works company and the authorities of the village of White Plains
on July 1, 1886, in which the village agreed to take aud the water works
company agreed to supply water for municipal and lire purposes for a
period of fl^e years at a stipulated price, contains a clause providing that
the village **iould have the right at the end of stipulated periods to pur-
chase the water works by jiving the company one year's notice of such
intention and paying to said company a valuation to be determined and
appraised by a board of arbitrators, chosen as therein provided, such valua-
tion in no case to exceed the cost of the works more than ten per cent,
the purchase clause is ultra vires and void, and cannot bo enforced by or
against the village. Matter ofBd. of Water Comrs. of White Plains. 239
8. Appraisal of Property of Water Works Company Made by Commis-
sioners in Condemnation Proceedings — Illegal and Erroneous When Based
u i >on Invalid Contract of Purchase. Where the board of water commis-
sioners of the village of White Plains, appointed by the statute (L. 1890, ch.
769), with power to supply the village with water and to acquire by purchase
or condemnation all water, water rights and property necessary therefor,
whether owned by individuals or water companies, instituted condemna-
676 INDEX.
WATER WORKS— Continued.
tion proceedings pursuant to such statute to acquire the property of a
water works company then supplying the village with water under the
contract of Jul v 1, 1886, and the commissioners appointed in such pro-
ceeding instead of appraising such property, including the good will and
franchise of the company, at its full value, as provided by the statute,
refused to be governed thereby and determined the value of the real
property and plant of the company in the manner provided for by the
contract of July 1, 1886, without any award for the franchise rights of
the company, such determination and award are illegal and erroneous
and must be set aside and a new appraisal ordered before new commissioners
to be appointed by the court. Id.
WHITE PLAINS (VILLAGE OF).
Invalidity of contract made by authorities thereof to purchase property
of water works company.
See Water Works, 7, 8.
WILL.
1. When Void Intermediate Trust, Created by Codicil, May Be Expunged
Without CItanging Testator's Plan for Disposition of Hie Property, the Will
Must Be Sustained. Where a testator devised and bequeathed his residu-
ary estate to his executors in trust to pay the income thereof to his wife
during her lifetime, with power to sell his real estate at any time during
the trust at their discretion, and after her death to transfer the residuary
estate to the designated trustees of a permanent trust, and thereafter,
after the death of his wife, testator executed a codicil to his will, revoking
the provisions therein contained for the benefit of bis wife, and directing his
executors to hold the residuary estate and invest and reinvest the income
thereof until the expiration of two years after his death and then to trans-
fer the residuary estate and the accumulated income thereof to the trus-
tees of the permanent trust, neither the will and the provisions thereof
granting the power of sale, nor the provisions creating the permanent
trust, are revoked or rendered invalid by the codicil, notwithstanding the
direction to hold and invest both principal and income of the residuary
estate for the definite period of two years after testator's death before
transferring the same to the permanent trustees constituted an unlawful
suspension of the power of alienation and provided for the unlawful accu-
mulation of income in violation of the statute (Real Property Law, §§ 32
and 51; L. 1896, ch. 547), since the invalid provisions of the codicil
affected neither the power of sale nor the existence of the permanent
trust, but only the time of the inception of the trust, and such provisions
can be expunged without making any change in the testator's plan for
the disposition of his residuary estate, except that the trustees of the per-
manent trust take possession thereof upon the testator's death instead of
two years later. Smith v. Chesebrough. 317
2. Construction of Clause Appointing Trustees "Residuary Legatees*' —
Residuary Estate Resulting from Invalid Trust Passes to Such Residuary
Legatees. Where a testatrix gave and devised all of her property to three
persons, named in her will, " to have and to hold the same to themselves,
their heirs and assigns forever, upon the uses and trusts following : To
pay nil my debts and pay such proportions of said estate to such per-
sons as they may ascertain and a majority shall agree to have been my
expressed wish, or as I may hereafter formally designate, and I hereby
nominate and constitute and appoint mv said trustees residuary legatees
of my estate," the use of the words " saia trustees " in the residuary clause
is the equivalent of specifying by name the residuary legatees who had
already been designated by their several names; ana, the second trust
being void for indefiniteness, the residue of the estate, after the payment
of debts as directed by the first trust, is a definite and ascertainable
quantity, the determination of which is not dependent upon the validity
INDEX. G77
WILL— C&ntinued.
or invalidity of the second trust, and passes to the residuary legatees;
since it is apparent from the language used by testatrix that she intended
to give her estate, after the execution of the two trusts, to the three
persons named as residuary legatees, their heirs and assigns forever, so
that the will stands, with the invalid trust eliminated, precisely as though
the testatrix had said, I give to these three persons all my property upon
the trust to pay my debts and the residue to them, their heirs and assigns
forever. Trunkey v. Van Sant. 535
WITNESSES.
In any criminal case not compelled to give any evidence against
themselves.
See Constitutional Law, 2-4.
Competency of facts showing hostility of witness — religious belief of
witness.
See Evidence, 4, 5.
TABULAR LIST OF OPINIONS.
Parker, Oh. J.
CONSTITUTIONAL LAW. '
Prohibition against use of free railroad passes by public offi-
cers applies to palace and sleeping car passes ; Const, art.
13, § 5.
People v. Wadhams, 9.
LITTLE FALLS (CITY OF).
Validity of provisions of charter prohibiting maintenance of
actions to set aside or annul assessments for local
improvements unless commenced within prescribed time
and in compliance with prescribed conditions.
Loomis v. City of Little Falls, 31, 33.
PRACTICE.
Continuance of action in state court against receivers appointed
by Federal court after their discharge ; Code Civ. Pro.
§ 756 ; Competency of tax deed.
Baer v. McCullough, 97, 99.
NASSAU (COUNTY OF).
Invalidity of resolution of board of supervisors of Nassau
county, passed April 0, 1901, providing that biennial
town meetings in said county in the year 1003 and there-
after should be held on the first Tuesday after the first
Monday in November.
People ex rel. Smith v. Weeks, 194, 197.
PRINCIPAL AND SURETY.
Impairment of indemnitor's rights ; Questions of fact.
City of New York v. Baird, 269, 272.
INTEREST.
Moneys advanced subject to election of executors to treat
advancement as a loan; Interest runs from time of
election.
Cole v. Andrews, 374, 375.
ELECTION OF REMEDIES.
Assignment for creditors; Res adjudioata.
Matter of Garver, 386, 389.
CRIMES.
The exaction of more than the legal rate of interest upon
unsecured loans does not constitute a misdemeanor under
section 378 of Penal Code. (Dis. op.)
People ex rel. Beebe v. Warden, etc. ; People ex rel. Van Linda
v. Warden, etc., 577.
680 TABULAR LIST OF OPINIONS.
APPEAL.
When appellate court may make order directing trial by jury
of questions of fact.
Matter of Hopkins, 596.
Gray, J.
SUBROGATION.
Rights of surety which has paid judgment recovered in tort
against several joint tort feasors and has 'been subro-
gated to rights of the judgment creditor thereunder;
Contract by one of several joint debtors under judgment
in tort to pay part thereof in consideration of his release
therefrom ; When such joint debtor will not be relieved
from contract because of similar contract made with
other joint debtors; When judgment debtor not entitled
to injunction restraining surety from enforcing his
agreement to pay part of the joint judgment.
Kolbv. National Surety Co., 233, 237.
CONSTITUTIONAL LAW.
Witness in criminal case not compelled to give any evidence
against himself. (Con. op.)
People ex rel. Lewisobn v. O'Brien, 253, 257.
CHAMPERTY.
When purchase-money mortgage champertous. (Bis. op.)
De Garmo v. Phelps, 455, 459.
STATE CHARITIES LAW.
Jurisdiction of New York city magistrate to sentence women
to state reformatory at Bedford under section 146
thereof; When conviction is for offenses enumerated
therein. (Dis. op.)
People ex rel. Clark v. Keeper, etc., 465, 471,
EQUITY.
Creditor's action to compel executor to sell real estate under
power of sale for payment of debts ; Acknowledgment by
executor prevents running of Statute of Limitations;
Former adjudication dismissing proceeding for an
accounting not a bar ; Failure to legally serve non-resi-
dent devisee with process fatal to judgment ; Erroneous
direction of sale by referee.
Holly v. Gibbons, 520, 525.
O'Brien, J,
COUNTY 00URT8.
Jurisdiction of; over counterclaims exceeding $3,000 in
amount.
Howard Iron Works v. Buffalo Elevating Co., 1, 3.
TABULAR LIST OF OPINIONS. 681
NEW YORK CITY.
Board of education, not the city, the proper party defendant
in suits relating to school funds ; Board of education an
independent corporation, not a city agency.
Gunnison v. Board of Education, 11, 13.
TRADE MARK.
When common English words, or a combination thereof, can-
not be adopted as such.
Barrett Chemical Co. v. Stern, 27, 29.
BENEFIT ASSOCIATION.
Unreasonable by-laws cannot deprive members of their rights.
Matter of Brown v. Order of Foresters, 132, 134.
BANKRUPTCY.
Discharge in, not a defense, or bar, to an action for embezzle-
ment and misappropriation of funds; Demurrer to
answer setting up same as a defense.
Watertown Carriage Co. v. Hall, 313, 314.
WILL.
When bequest of a portion of a remainder of an estate to a son
of testatrix "in trust for his wife " must be construed
as an absolute bequest to the son. (Dis. op.)
Matter of Guwne, 597, 598.
Bartlett, J.
WATER WORKS CORPORATIONS.
Water company incorporated under Transportation Corpora-
tions Law (L. 1890, ch. 566, as amd. by L. 1892, ch. 617),
for the purpose of supplying water to towns and villages
adjacent to a city, has no right to cross the streets of
the city, although upon the right of way of a railroad
company, unless subject to such restrictions as to route
and interference with the public streets as the loca-
authorities may impose ; Possibility that water company
may become competitor of city in supplying water to
consumers entitles city to injunction restraining com-
pany from laying its water mains and pipes through the
city, when water company may reach the town and
villages adjacent to city by another route ; Effect of
statutes, to prevent water company passing through
the city, enacted after incorporation of the company.
(Dis. op.)
Rochester & L. O. W. Co. v. City of Rochester, 36, 52.
RIPARIAN BIGHTS.
When deed conveying land surrounding inland pond for flow-
age purposes conveys absolute fee of the land. (Dis. op.
Matter of Brookfield, 138, 149.
682 TABULAR LIST OF OPINIONS.
FALSE REPRESENTATIONS.
Action for damages will not lie between members of two firms
having one member common to both; When firm not
liable for false representations of partner.
Taylor v. Thompson, 168, 170.
INSURANCE, LIFE.
Restriction of power of agents ; When provision in application
for insurance that policy shall not take effect until first
premium be paid thereon in full charges applicant with
notice that agents without express authority have no
power to waive it.
Russell v. Prudential Ins. Co., 178,180.
COSTS.
What costs may be recovered by landowner successfully
defending condemnation proceeding instituted under
section 3372 of Code of Civil Procedure.
Matter of Brooklyn Union El. It R. Co., 213. 214.
CONSTITUTIONAL LAW.
Witness in any criminal case not compelled to give any evi-
dence against himself; When determination whether or
not answer will incriminate him rests with witness;
Const, art. 1, $ 6 ; Privilege of witness provided for by
section 342 of the Penal Code not co-extensive with that
afforded by constitutional provision.
People ex rel. Lewisohn v. O'Brien. 253, 257.
TRIAL.
When question whether judgment for money may be **ecovered
is dependent upon decision of equitable questions the
issue is not triable by a jury, as a matter of right, under
Code Civ. Pro. § 968.
Dykman v. U. S. Life Ins. Co., 299, 300.
RAILROADS.
Eminent domain ; Measure of damages where a portion of a
tract of land is taken.
South Buffalo Ry. Co. v. Kirkover, 301, 803.
CONSTITUTIONAL LAW.
Personal rights; Admissibility on criminal trial of private
papers alleged to have been unlawfully obtained ; When
admission of private papers not violative of constitu-
tional guaranty against compelling prisoner to be a
witness against himself; Const, art. 1, § 6; Crimes;
Policy gambling ; Constitutionality of sections 344a and
344b of Penal Code ; What public officers may lawfully be
in possession of apparatus used in game of policy ; Consti-
tutionality of indeterminate sentence law ; Penal Code,
§ 687a; Non-existence of search warrant immaterial.
People v. Adams, 351, 355.
TABULAR LIST OF OPINIONS. 683
ELECTION OF REMEDIES.
Assignment for creditors ; Res adjndicata. (Bis. op.)
Matter of Garver, 386, 395.
TRIAL.
Direction of verdict, when improper; Evidence presenting
question of fact.
Sundheimer v. City of New York, 495. 496.
HIGHWAYS.
New York and Albany post road ; Town officers of town of
Hyde Park have no power to alter same ; Effect of chap-
ter 423, Laws of 1896 ; Power of town officers of Hyde
Park restricted by section 77 of the County Law relating
to the alteration of state roads, (Dis. op.)
People ex rel. Dinsmore v. Vandewater, 500, 510.
EQUITY.
Creditor's action to compel executor to sell real estate under
power of sale for payment of debts ; Failure to legally
serve non-resident devisee with process fatal to judg-
ment. (Con. op.)
Holly v. Gibbons, 520, 580.
Haight, J.
WATER WORKS CORPORATIONS.
Water company incorporated under Transportation Corpora-
tions Law(L. 1890, ch. 566, as amd. by L. 1892, ch. 617)
for the purpose of supplying water to towns and villages
adjacent to a city ; When it may lay its water mains
and pipes through the city; When entitled to injunc-
tion restraining the city from preventing the laying of
water pipes ; When ordinances adopted under provisions
of the charter of the city have no application to the lay-
ing of wafer mains through the city; When superin-
tendent of water works of city may not interfere with
water pipes and mains passing through the city ; Effect
of statutes enacted after water company's rights have
been acquired ; When water works company not required
to go around city with its water mains and pipes ; Possi-
bility that water company may become competitor of
city in supplying water to consumers will not prevent
company from laying water mains and pipes through
the city ; When city may not attack validity of water
company's right of way through the city upon lands of
railroad company; Local authorities should be given
reasonable control in such cases as to the streets to be
used, and the place and manner in which the pipes
should be laid.
Rochester & L. O. W. Co. v. City of Rochester, 36, 41.
684 TABULAR LIST OF OPINIONS.
HUSBAND AND WIFE.
Liability of husband for goods purchased by wife; Wife's
agency a question of fact.
Wanamaker v. Weaver, 75, 76.
CORPORATIONS.
Action for damages resulting from conspiracy to wreck cor-
poration must be brought by corporation, not by an
individual stockholder; Protection of interests of
minority stockholders ; Measure of damages.
Niles v. N. Y. C. & H. R. R. R. Co., 119, 121.
RIPARIAN RIGHTS.
When a deed of land bounded by, and surrounding, inland
pond does not convey the land under the waters of the
pond; When deed of land surrounding pond conveys
easement, or right, to overflow such land with waters
stored by dam, leaving title and benefits thereof in
grantor; Effect of agreement by grantor to buy back
easement if not used by grantee; Condemnation of
rights of owners of waters of inland pond and rights of
owners of land surrounding the pond and under waters
of the same in proceeding by city of New York under
chapter 189 of Laws of 1893 ; When owner of bed of
pond entitled to substantial damages therefor.
Matter of Brookfield, 138, 142.
INSURANCE, LIFE.
Restriction of power of agents ; When provision in application
for insurance that policy shall not take effect until first
premium be paid in full does not charge applicant with
notice that agents without express authority have no
power to waive it. (Dis. op.) »
Russell v. Prudential Ins. Co., 178, 189.
MISDEMEANOR.
Unlawful omission to provide medical attendance for a minor
child ; When indictment therefor sufficient ; When omis-
sion to furnish medical attendance is unlawful ; Test of
necessity for medical attendance; Reasonable discre-
tion ; Duty to furnish medical attendance to minor child
imposed by statute on guardians, parents and those in
loco parentis ; Meaning of " medical attendance ; " Con-
stitutional guaranty of freedom of worship not violated
by statutory requirement.
People v. Pierson, 201. 203.
TABULAE LIST OF OPINIONS. 685
WHITE PLAINS (VILLAGE OF).
Invalidity of contract made by authorities thereof to purchase
property of water works company; Agreement as to
appraisal by arbitrators ; Appraisal of property of water
works company made by commissioners in condemna-
tion proceedings; Illegal and erroneous when based
upon invalid contract of purchase.
Matter of Water Comrs. of White Plains, 239, 242.
EXECUTORY AND ADMINISTRATORS.
When payment to foreign administrator after appointment of
administrator in this state discharges debt.
Maas v. German Savings Bank, 377, 379.
NEW YORK CITY. •
Street improvement ; When city not liable for damages caused
by mistake of city surveyor in fixing grades.
Becker v. City of New York, 441, 442.
TRIAL.
Direction of verdict, when improper ; Evidence presenting
question of fact. (Con. op.)
Sundheimer v. City of New York, 495, 500.
HIGHWAYS.
New York and Albany post road ; Power of town officers of
town of Hyde Park to alter and improve same; Not
affected by chapter 423 of Laws of 1896 ; Power of town
officers of Hyde Park not restricted or affected by section
77 of the County Law relating to the alteration of state
roads.
People ex rel. Dinsmore v. Vande water, 500, 503.
TAX.
Foreign insurance corporation ; Franchise tax upon fire and
marine insurance corporation ; Effect of chapter 118 of
Laws of 1901.
People v. Thames & Mersey M. Ins. Co., 531, 532.
Martin, »f.
EVIDENCE.
Competency of facts showing hostility of witness ; Religious
belief of witness.
Brink v. Stratton, 150, 151.
NEW YORK CITY.
Street improvement ; When city liable for damages caused by
mistakes of city surveyor in fixing grades. (Bis. op.)
Becker v. City of New York, 441, 447.
68G TABULAE LIST OF OPINIONS.
MUNICIPAL CORPORATION.
Private use of public streets ; Presumption arising from lapse
of time that user is with consent of public authorities
may be dispelled by proof ; New York city ; Reconstruc-
tion of vault under sidewalk ; When payment for permit
involuntary ; When reconstruction may be made with-
out permit or additional compensation ; Collation of stat-
utes relating to use of public streets for vaults ; When
presumption of lawful user is dispelled by proof; Ques-
tion of fact.
Deshong v. City of New York, 475, 477.
Vann, J.
MURDER.
Sufficiency of evidence; Competency of threats made by
defendant ; Incompetency of evidence of specific acts of
violence of deceased to third person ; Charge.
People v. Gaimari, 84, 85.
MURDER.
Sufficiency of evidence ; Insanity ; When court is justified in
refusing to appoint commission under the statute (Code
Crim. Pro. § 658) to examine defendant and report as to
his sanity; Instruction as to presumption of sanity of
defendant; Trial court not bound to charge request of
counsel where substantially the same proposition has
already been charged ; Examination of alleged error in
charge ; When such error cannot be reviewed without an
exception thereto ; Effect of section 528, Code of Criminal
Procedure.
People v. Tobin, 278, 380.
APPEAL.
Power of Appellate Division to reverse or affirm wholly or
partly ; Code Civ. Pro. § ISli.
City of Buffalo v. D., L. & W. R. R. Co., 808. 809.
MURDER.
Sufficiency of evidence ; Briefs of counsel should contain a fair
statement of facts ; Admissibility of confession procured
by deception; Code Crim. Pro. § 395; Credibility of a
witness thereto a question for the jury ; How competency
of confession is to be determined ; Instruction to jury.
People v. White, 381, 884.
TAX.
New York city ; Effect of assessment made while proceeding
for condemnation of property by city is pending ; Tax
not a lien, when title passed to city before confirmation
of assessment roll.
Buckhout v. City of New York, 868, 385.
TABULAE LIST OF OPINIONS. 687
NEW YORK CITY.
Payment to de facto clerk is a defense to action for salary by
de jure clerk.
Martin v. City of New York, 871, 372.
TAX.
Section 220 of Tax Law imposing transfer tax upon the
exercise of a power of appointment constitutional;
Construction of statute.
Matter of Delano, 486, 489.
CuLLBN, J.
EJECTMENT.
Grant obtained by fraud; When plaintiff may attack its
validity, although negligent in failing to read it ; When
resort to equitable action unnecessary; Consideration
need not be returned.
Wilcox v. American Tel. & Tel. Co., 115, 116.
GUARDIAN AND WARD.
Check drawn by guardian notice to payee that fund belongs to
ward; Funds mingled with those of the ward belong
presumptively to ward ; Burden of proot
Colmfeld v. Tanenbaura, 126, 129.
EVIDENCE.
Competency of facts showing hostility of witness ; Religious
belief of witness. (Con. op.)
Brink v. Stratton, 160, 156.
NEGLIGENCE.
When contributory negligence a question of fact ; Degree of
care.
Walsh v. Central N. Y. Tel. & Tel. Co., 168, 164.
MISDEMEANOR.
Unlawful omission to provide medical attendance for a minor
child ; Duty to furnish medical attendance to-minor child
imposed by statute on guardians, parents and those in
loco parentis. (Con. op.)
People v. Pierson, 201, 212.
STREETS.
Change of grade ; Proceedings for damages caused thereby ;
Construction of statutes relating thereto; When pro-
ceeding for damages caused by change of grade in street
may be instituted and maintained under chapter 113 of
Laws of 1883 ; Parties to such proceeding.
Matter of Torge v. Vil. of Salamanca, 324, 326.
688 TABULAE LIST OF OPINIONS.
MECHANIC'S LIEN.
Action to foreclose lien ; When action commenced within one
year after filing lien is dismissed for lack of evidence, a
new action may be commenced under Code Civ. Pro.
§ 405, within one year after final determination of first
action.
CoDnolly v. Hyams, 408, 405.
PARTITION.
Parties ; When state tax deed void for failure of comptroller
to give statement of unpaid taxes on land when requested
by owner ; Section 132 of the Tax Law relating to effect
of former deeds not applicable.
Wallace v. McEchron, 424, 425.
PLEADING.
Insufficiency of general allegation of fraud ; New York city ;
Power of new East river bridge commissioners ; Ch. 789,
L. 1895 ; Provisions in specifications limiting competi-
tion neither illegal nor fraudulent ; Insertion of invalid
provisions of Labor Law does not render contract void.
Knowles v. City of New York, 480, 433.
CHAMPERTY.
When purchase-money mortgage not champertous.
De Garmo v. Phelps, 455, 456.
Werner, J.
TITLE INSURANCE.
What is insured by policy of ; Reformation of policy ; When
insurer not liable for assessment levied on property after
conveyance to insured, but before the date of issuance of
policy ; Testimony of experts not competent to support
conclusion that the policy should have been different in
form.
Trenton Potteries Co. v. Title G. & T. Co., 65, 67.
APPEAL.
When erroneous rulings upon trial will not justify the reversal
of a judgment ; Judicial notice.
Adams v. Elwood, 106, 107.
EVIDENCE.
Action to recover alleged agreed value of lost property ; When
evidence of expert admissible to show that such value
was excessive; Erroneous ruling excluding such
evidence.
Hicks v. Monarch Cycle Mfg. Co., Ill, 112.
TABULAE LIST OF OPINIONS. 689
CTtTMKR
Uxoricide ; Evidence of reputation for unchastity of defendant's
alleged paramour incompetent upon the question of
motive ; Code Cr. Pro. § 642 ; Duty of trial court as to
a theory of the prosecution wholly unsupported by
evidence.
People v. Montgomery, 219, 221.
WILL.
When void intermediate trust, created by codicil, may be
expunged without changing testator's plan for
disposition of his property, the will must be sustained.
Smith y. Chesebrough, 317, 820.
NEGLIGENCE.
Collision at sea ; Erroneous refusal to charge.
Qrube v. Hamburg- American Steamship Co., 888, 884.
NEW YORK CITY.
Title to lands under water ; Title to lands in the public streets
held in trust ; Rights of general public over places where
land highways and navigable waters meet; Power of
legislature to prescribe that submerged lands should be
used for streets ; Conveyance by the city of New York of
pier in Forty-third street not a conveyance in fee of land
covered by the pier ; Effect of covenants contained in
prior deeds of adjoining land under water to same
grantee ; Action predicated upon title in fee not main-
tainable.
Knickerbocker Ice Co. v. Forty-second St. & G. St. F. R. R. Co.,
408, 412.
BUFFALO (CITY OF).
Power of commissioners under grade-crossing acts to change
general plan.
Lehigh Valley Ry. Co. v. Adam, 420, 421.
STATE CHARITIES LAW.
Jurisdiction of New York city magistrate to sentence women
to state reformatory at Bedford under section 146
thereof; Conviction must be for offenses enumerated
therein.
People ex rel. Clark v. Keeper, etc., 466, 467.
CEBTIOBARL
Return to certiorari to review determination of town board
made by majority of board is conclusive upon Appellate
Division ; Separate return made by one member of board
cannot be considered.
People ex rel. Lester v. Eno, 518, 517.
44
^
690 TABULAE LIST OF OPINIONS, .
WILL.
Construction of clause appointing trustees " residuary leg-
atees ; " Residuary estate resulting from invalid trust
passes to such residuary legatees.
Trunkey v. Van Sant, 585, 589.
Pbb Curiam.
MURDER.
Sufficiency of evidence; When judgment convicting defend-
ant of murder will not be reversed in the absence of
exceptions.
People y. Ennis, 389, 290.
APPEAL.
Modification of judgment.
Hall v. City of New York, 298, 295.
NEW YORK (CITY OF).
Interest on claim against city; Runs only from time of
demand of payment.
O'Keeffe v. City of New York, 297, 298.
Deputy tax commissioner ; Office of; excepted from provisions
of section 21 of Civil Service Law prohibiting removal
of honorably discharged volunteer firemen therefrom,
except after hearing on stated charges.
People ex rel. Ryan v. Wells, 482, 468.
*,. CM.
6 ;&/.';■!/
1
r » ^
Live Music
Archive
Librivox
Free Audio
Metropolitan Museum
Cleveland
Museum of Art
Internet
Arcade
Console Living Room
Open Library
American
Libraries
TV News
Understanding
9/11